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 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.

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 facts and conclusions of law. The Claims Commission awarded 94% permanent partial disability to the employee and commuted the award to a lump sum. The employee’s position is that she is permanently and totally disabled. We agree with the position of the employee. Accordingly, we award the employee permanent total disability benefits and reverse the communation of the award to a lump sum.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The trial court found that the employee was permanently and totally disabled as a result of the work-related back injury and awarded permanent and total disability benefits, allocating the responsibility for paying those benefits 85% to Bi-Lo and 15% to the Secondary Injury Fund. The employer, Bi-Lo has appealed the trial court’s award contending that the trial court erred in finding the employee permanently and totally disabled. The employer also appeals the allocation of responsibility for the vocational disability between itself and the Second Injury Fund. After a careful review of the record, we conclude that the trial court should be affirmed as modified.

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 the employee's heart attack to be compensable and awarded benefits for 20% permanent partial disability. The employer contends that the heart attack did not arise out of or occur in the course of his employment. The employee contends the amount of the award is inadequate. We reverse the trial court's finding that the heart attack 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 § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee, Kenneth Conaway, was permanently and totally disabled. The employer has appealed that ruling, contending that the Mr. Conaway’s work as a minister precludes a finding of total disability. We agree and modify the award of the trial court to seventy-two percent permanent partial disability of 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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer asserts that the trial court erred in (1) finding that the employee’s work injury of October 15, 2003, rather than his non-work injury of March 2004 caused his permanent disability; (2) assessing 60 percent vocational disability for the employee’s injury; and (3) assessing the employer for the medical treatment received by the employee by Doctors Smith and Hodges. We agree with the findings of the trial court and in accordance with Tennessee Code Annotated section 50-6-225(2), affirm the judgment of the trial court.

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 Employer has appealed the action of the trial court, which found that the Employee is permanently and totally disabled and that the Employer is responsible for 62.5% of the award and the Second Injury Fund is responsible for 37.5%. We find that the award should be vacated and the case should be remanded for a new hearing.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The trial court awarded the Plaintiff eighty-five percent vocational impairment for each arm for a bilateral carpal tunnel work injury. The employer has appealed contending that the trial court erred in awarding eighty-five percent vocational impairment to each arm in light of the employee’s work history subsequent to the work-related injury. The employer also contends that the trial court erred by inappropriately weighing the testimony of the employee’s vocational expert in assessing the eighty-five percent vocational disability. Finally, the employer asserts that the trial court erred in admitting the testimony of Rodney Caldwell, PhD. After a careful review of the record, we conclude that the trial court should be affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The trial court ordered the employer to provide medical treatment pursuant to a court approved settlement for a 1995 injury and awarded attorneys’ fees pursuant to Tennessee Code Annotated section 50-6-204(b)(2). The employer has appealed contending that the trial court erred because the employee’s current condition is caused by age-related degenerative arthritis and not by the 1995 work accident and that the attorney fee award was not proved to be reasonable in amount. After a careful review of the record we conclude that the trial court should be affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The trial court found that the employee was permanently and totally disabled as a result of a work-related knee injury and awarded permanent and total disability benefits until the employee is, by age, eligible for full benefits in the Old Age Insurance Benefits Program under the Social Security Act. Tenn. Code Ann. § 50-6-207(4)(B)(2003). The employer has appealed the trial court’s award contending that the trial court erred in finding that the employee gave notice of the work-related injury and that the trial court erred in considering a summary of the medical depositions as opposed to having read the medical depositions before rendering a decision. After careful review of the record, we conclude that the trial court should be 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 section 50-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal the employer asserts that the trial court erred in rejecting the opinion of the treating physician in awarding the employee benefits based upon a finding of 32.5 percent permanent partial disability to the body as a whole. We agree with the findings of the trial court and in accordance with Tennessee Code Annotated section 50-6-225(e)(2), 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. The employee suffered carpal tunnel injuries to both upper extremities. The trial court found that the employee was entitled to a permanent partial disability award of 30% to each upper extremity. The trial court assigned liability for the benefits upon the last insurer for the employee’s previous employer, finding that the employee’s condition had not been aggravated or advanced by her job duties with her subsequent employer. The insurance company appealed. We affirm the trial court in all respects.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee 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. On appeal, the employee contends that the trial court erred when it dismissed the employee’s back injury claim based on her failure to comply with the notice provisions of Tennessee Code Annotated section 50-6-201. Although dismissing the employee’s claim, the trial court made an alternative finding that the back injury was work-related and resulted in a 20% vocational impairment to the body as a whole. The employer appeals this alternative ruling contending that the trial court erred in finding the injury work-related. We conclude that the trial court erred in dismissing the employee’s claim based on the notice provisions and affirm the trial court’s finding that the back injury is work-related and results in a 20% impairment to the body as a whole. We conclude that the alternative finding is supported by the record. Therefore, we affirm in part and reverse in part, remanding this 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 in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee, Mary Nell McCrary, permanently totally disabled. The employer, Cracker Barrel, Old Country Store, Inc. (Cracker Barrel), appeals alleging the trial court based its determination on inaccurate factual findings, unreliable expert testimony and inadmissible evidence. Finding no error, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (25) Appeal as of Right; Judgment of the Trial Court Affirmed DONALD P. HARRIS, SR. J., in which GARY R. WADE, J., and J. S. (STEVE) DANIEL, SR. J., joined. John Thomas Feeney, Catherine L. Grant, Nashville, Tennessee, for the Appellant, Cracker Barrel, Old Country Store, Inc. Neal Agee, Lebanon, Tennessee, for the Appellee, Mary Nell McCrary. MEMORANDUM OPINION I. FACTUAL AND PROCEDURAL BACKGROUND The parties to this action for workers' compensation benefits stipulated that Ms. McCrary suffered a compensable injury to her left shoulder on January 2, 1998. She reached maximum medical improvement on November 1, 1998, and was assigned a thirty-four percent (34%) impairment rating to the body as a whole by her treating physician, Dr. Roy Terry. Ms. McCrary was sixty years of age at the time of the trial. On January 2, 1998, while working at the Cracker Barrel Distribution Center as an order puller, she fell over a guard rail, and very painfully landed on her left shoulder. Ms. McCrary is left-handed, so the injury was to her dominant arm. After being examined at a local clinic, she was referred to Dr. Roy Terry, an orthopedic surgeon. After reviewing the results of an MRI, Dr. Terry recommended and performed surgery. Following surgery, the problems with her left arm worsened. She was given pain medication that was eventually replaced by a TENS unit which Ms. McCrary continues to use daily along with Tylenol. Dr. Terry released her on November 1, 1998, but restricted her from using her left arm and shoulder. She attempted to return to Cracker Barrel, but was told that the jobs there required use of both arms. Ms. McCrary testified that she has lost much of the use and strength in her left arm. She finds it difficult or impossible to perform common tasks such as brushing her teeth and hair, dressing herself and bathing. She does none of the housework, cooking, or yard work and has difficulty answering the telephone. Ms. McCrary spends about half her day lying down or reclining, and has not worked since being released by Dr. Terry. She had an automobile accident in March 1999, in which she injured her right shoulder and has also had surgery on that shoulder. Over the objection of Cracker Barrel, Ms. McCrary was allowed to testify that following her release by Dr. Terry, Cracker Barrel continued paying her weekly compensation for several years. According to Ms. McCrary, it was when the workers' compensation insurance carrier for Cracker Barrel indicated that after January 17, 26, she would no longer receive these payments that she filed her lawsuit for workers' compensation benefits. Ms. McCrary completed the eleventh grade at Mt. Juliet High School before getting married and discontinuing her education. She worked for four or five years at McFarland Hospital as a nurse's aide. Thereafter, for a time, she stayed home and took care of her son before going to work for her husband and his father in their business, McCrary and Son Excavating. Her duties there included cleaning the offices, doing light filing, and answering the telephone. When she and Mr. McCrary were divorced, she left that job and began working for Johnson's Retirement Center as a patient assistant and housekeeper. Ms. McCrary held that job for four to six years and then accepted employment from Cracker Barrel where she worked for about four years prior to her injury. Her job at Cracker Barrel involved filling, packing and shipping orders from the various Cracker Barrel stores and required that she use both arms, lifting and reaching. Ms. McCrary testified she could not do any of the jobs she had previously held. She has had no vocational training of any kind and is not good at reading or math. She described herself as being a slow learner in school. Ms. McCrary is able to write with her left hand and can pick up objects that are not heavy. She testified, however, that she was not able to do anything for a long period of time because of the pain in her shoulder and arm. -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6 * Page_7 * Page_8 * Page_9

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. Bobby Chris Couch was injured within the course and scope of his employment when he fell while unloading a truck. During the fall he caught his right leg between the truck and the loading dock. This resulted in a crushing injury to the right leg and a back sprain. Mr. Couch filed a complaint seeking to recover workers’ compensation benefits for permanent partial disability to his leg and back. The trial court awarded 5% partial disability to the lower extremity. However, the court found no permanent impairment to the back. The court’s final order required the employer to be responsible for future medical benefits for the leg and back injury. The employer has appealed only the award of future medical benefits for the back injury claiming that the trial court erred in making such an award when there was no expert medical proof of either permanent impairment or work limitations for the back injury. After review we affirm the trial’s court findings.

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 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in finding that the employee's injury, caused by a fall in the workplace, arose from her employment. We agree with the findings of the trial court and in accordance with Tennessee Code Annotated section 5-6-225(e) (2) affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Trial Court Affirmed JON KERRY BLACKWOOD, SR. J., in which WILLIAM M. BARKER, C.J., and J. S. (STEVE) DANIEL, Sr. J.,joined. Daniel T. Swanson, Knoxville, TN, for the Appellant, Patsy Diane Ownby. John P. Dreiser, Knoxville, TN, for the Appellee, Marriott Hotel Services, Inc., d/b/a Marriott Business Services. MEMORANDUM OPINION I. FACTUAL BACKGROUND Patsy D. Ownby [hereinafter "the employee"] was employed as a billing specialist for Marriot Hotel Services [hereinafter "the employer"]. She began her employment with the employer in 2. -1- She had an associate's degree in accounting and was 53 years old at the time of trial. On August 15, 23, the employee was attending a daily "stand-up meeting" within her department. As the meeting was concluding, she testified that she walked down an aisle and "her feet caught on the carpet" causing her to fall. She described the fall as "being shot out of a rocket." She further testified that she was wearing non-skid office type shoes, that she had previously stumbled on the carpet, and that she was aware that other employees had stumbled. As a result of the fall, the employee suffered carpet burns on both hands and knees, broke her glasses and watch, and sustained injuries to her right arm, cervical spine and left knee. After the accident, the employee saw Dr. Basile, who was a physician offered to her as a part of a panel of physicians provided by the employer. Dr. Basile referred the employee to several physicians to treat her for her injuries. She was treated by Dr. Finelli with therapy and medication for her cervical spine injury. Dr. Finelli referred her to Dr. Bellner, a physiatrist. Dr. Koenig performed surgery on employee's left knee. She was also seen by Dr. Killeffer for a cervical spine evaluation and Dr. Burns for an arm evaluation. Dr. William E. Kennedy saw the employee for an independent medical evaluation and agreed with Dr. Finelli's assessment that the employee had suffered a 7% impairment of the cervical spine. In addition, Dr. Kennedy, who testified by deposition, further opined that the employee's left knee had a 2% whole body impairment rating, for a combined rating of 9%. II. RULING OF THE TRIAL COURT The trial court found the injury to be compensable, and awarded 22.5% permanent partial disability to the body as a whole. III. STANDARD OF REVIEW The standard of review of issues of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 149 (Tenn. 1989). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be afforded those circumstances on review since the trial court had the opportunity to observe the witness's demeanor and to hear in-court testimony. Long v. Tri-Con Industries, Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). IV. ANALYSIS The only issue raised by the employer is whether the trial court erred in finding that the injury arose out of employee's employment. The employer contends that the employee's injuries were caused by an idiopathic fall, and thus not compensable. -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 o 4 o 5 o 6 o 7 o 8

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. The trial court found that the employee had suffered a work-related back injury and awarded the employee permanent partial disability benefits of 57.5% to the body as a whole. The employer appeals, contending that the employee’s back problems did not arise out of his employment. We affirm the trial court.

In this workers’ compensation case we granted the motion for review1 filed by the employee, Bonnie Turner (“Turner”), in order to evaluate the correctness of the trial court’s decision to award benefits to Turner against the Tennessee Department of Labor Second Injury Fund. The award was predicated upon the court’s determination that Turner had sustained a 60% permanent partial disability due to a work-related bilateral carpal tunnel injury and a resulting condition of hypertension. The trial court’s award in this case was made subsequent to that court’s decision to award Turner permanent total disability benefits against her employer as a result of a prior injury. We hold that an employee who is permanently and totally disabled as provided for in Tennessee Code Annotated section 50-6-207(4)(A)(i) is barred from receiving additional vocational disability benefits unless the employee can establish rehabilitation from the injury which caused the permanent and total disability. This principle applies even though the employee temporarily returns to work following the first injury and suffers a subsequent work-related injury close in time. Therefore, we reverse the trial court’s award against the Second Injury Fund.

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 Employee suffered an injury to his leg when his knee buckled while he walked across the floor of the Employer’s warehouse. The trial court dismissed his cause of action, finding that the injury was idiopathic and not compensable because the Employee had not proven any hazard incident to the employment that caused or exacerbated his injury. The Employee appealed. We find that the evidence does not preponderate against the finding of the trial court and affirm the decision of the trial court.

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. On this appeal, the employer, Saturn Corporation (Saturn), challenges the finding of the trial court that the avascular necrosis (AVN) suffered by the employee, Kenneth Polly, was advanced by his work activities and that the injury sustained by him was compensable under the Workers’ Compensation Law. We agree with the trial court’s finding and affirm.

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Prior to trial the parties settled the issue of permanent vocational impairment at 17% permanent partial disability to the body as a whole, which was subsequently court-approved. The defendant, Parker Hannifin Corporation, originally contended that the court erred in holding the defendant liable for plaintiff's milage to and from her residence or workplace and that of her medical provider due to the fact that the trips did not involve travel 15 miles or more in radius. The plaintiff having conceded the court's error in doing so, that leaves remaining the defendant's second contention, that being that the court erred in holding defendant responsible for what plaintiff's claim of unauthorized medical expenses in the amount of $39,037.25. We hold the court was correct, and therefore 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 _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred in finding that the employee suffered a compensable back injury which arose out of and in the course of his employment. We affirm.

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. The employee, Vivian Larose Johnson, sought workers’ compensation benefits for carpal tunnel injuries to both hands and a separate injury to her back. The trial court found the employee had sustained a work related injury and that she had sustained a sixty percent permzzanent partial disability to the body as a whole without specifying the validity of her separate claims. The employer, Coca-Cola Enterprises, Inc. (Coca-Cola), has appealed, alleging the trial court erred in finding Ms. Johnson’s claim for benefits for the injury to her back had been filed within the limitations period established by Tennessee Code Annotated section 50-6-203(a), and in awarding Ms. Johnson sixty percent permanent partial disability as a whole. We agree, reverse in part and remand the case to the trial court for determination of the remaining claims.

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _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 trial court erred in finding that she had failed to demonstrate that she had suffered a permanent injury to her back while in the course of employment for the defendant. We conclude the trial court was correct in its finding, however, and therefore, we affirm the decision of the trial court.

This worker's 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 employee, James Bradley, alleges that the trial court erred in dismissing his suit because his employer, Plus Mark, Inc., had actual notice of his injury or, in the alternative, the employee's failure to provide timely notice of his injury was excused. In addition, the employee asserts that the trial court erred when it found that the employee's injury did not occur in the course of his employment. We affirm the judgment of the trial court.