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 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 trial court awarded the employee 50 percent disability to the body as a whole based upon a 20 percent impairment. The employer contends the award was excessive because the trial court failed to allocate impairment to a preexisting spondylolisthesis. Judgment is modified to find impairment to be 11 percent from last injury and recovery is limited to two and one-half times impairment rating.

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 Employee, Charlene Bennett, insists that the trial court erred in dismissing her complaint, finding that she had failed to prove that her injuries arose out of and in the course of her employment. For the reasons set out below, the Panel has concluded that the evidence fails to preponderate against the findings of the trial court. Judgment of the trial court is affirmed with costs assessed against the employee.

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 trial court awarded the employee 60% permanent partial disability to the body as a whole and found that his work activities had advanced and anatomically changed his pre-existing arthritic condition. The employer contends that: 1) the employee did not give proper notice of his injuries; 2) that his work activities did not cause an advancement of his pre-existing arthritic condition; and 3) the disability award was excessive and unsupported by the evidence. For the reasons set forth below, we affirm the judgment of the trial court.

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 determining whether the appellant was an employee or an independent contractor, the trial court evaluated the factors listed in Tenn. Code Ann. § 50-6-102(10) distinguishing between employees and independent contractors and considered the evidence to be inconclusive. The trial court based its determination of independent contractor status on a Form I-18, Election of Non-Coverage by Sub-Contractor, filed by the appellate almost two years prior to the accident. The appellant contends that the trial court erred by determining he was an independent contractor. For the reasons set forth below, we reverse the holding of the trial court and remand for a determination of degree of 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 § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law.  The trial court found the employee failed to prove her claims of occupational disease or aggravation of pre-existing condition. We affirm.

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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, the injured employee insists the award of twenty-five percent vocational disability to the body as a whole, based on a ten percent permanent medical impairment rating offered by the treating physician, is inadequate.  The employee contends that the trial court erred in setting the impairment rating at ten percent and that the evidence preponderates for a finding of twenty-five percent medical impairment rating, subject to a multiplier of two and one-half. We hold that the evidence does not preponderate against the trial court's findings as to the extent of anatomical and vocational disability. Accordingly, the judgment of the trial court is affirmed.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn.Code Ann. § 50- 6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. In this appeal, the Second Injury Fund insists that the trial court improperly allocated 90% of the disability award to the Fund and further that the trial court erred in finding the employee permanently and totally disabled. For the reasons set out below, the panel has concluded that the evidence fails to preponderate against the findings of the trial court. Judgment of the trial court is affirmed with costs assessed against the Second Injury Fund.

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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court determined that the employee was entitled to retain temporary total disability benefits paid by the employer, but was not entitled to any additional benefits. On appeal, the employee submits that the trial court erred in (1) holding that her injury did not entitle her to further benefits or reimbursement of past medical expenses, (2) adopting inappropriate contingent findings of fact, and (3) making a factual finding that she resigned from her employment. The employer raises the additional argument that the trial court erred by denying its motion for reimbursement of temporary total disability benefits. For the reasons set forth below, 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) (Supp. 2003) for hearing and reporting to the Supreme Court, findings of fact and conclusions of law. The trial court found the employee proved that his injury was compensable.  We affirm.

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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff re-injured his back while operating a jackhammer allegedly in violation of his lifting limitations.  The thrust of the defense centered on the asserted misconduct of the plaintiff. The trial judge disallowed the defense. We affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tenn. Code Ann. § 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 compensable injury to his left knee and awarded permanent partial disability benefits of forty percent for the left lower extremity, but
denied recovery for the employee’s back injury. The employee contends that the evidence preponderates against the trial court’s conclusion that his back injury was not compensable. For the reasons set forth below, we reverse the holding of the trial court and remand for a determination of permanent partial disability benefits.

First Source Furniture Group and Travelers Insurance Company have appealed the decisions of the trial court in favor of Randy Lee Hayes. First, the trial court awarded Mr. Hayes 25% permanent partial disability to his left arm due to a new injury. Second, the trial court, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), reconsidered Mr. Hayes’ prior award and increased it by 7% to the body as a whole. We affirm the decisions of the trial court while correcting an admitted error regarding Mr. Hayes’ workers’ compensation benefit rate for the arm injury.

The employee, Lawrence Parisi, has appealed the trial court's dismissal of his workers’ compensation lawsuit. Mr. Parisi was a Mississippi resident. He worked at a Ryan's Family Steakhouse in Mississippi and was injured there. Based upon the facts of this case and the applicable law, we affirm the dismissal entered by the trial court.

American Protection Insurance Company and Tower Automotive Products Company, Inc. appeal the trial court’s grant to Loucindra Taylor of 12% permanent partial disability to both of her arms. First, the Appellants contend that the injured employee did not give notice to the employer as required by law. Second, the Appellants argue that the medical evidence failed to show that the Plaintiff’s condition was related to her employment. Third, the Appellants claim that the 12% award to each arm is excessive and not supported by the evidence. For the reasons set forth below, we affirm the decision of the trial court.

This case is before the Court upon the entire record, including the order of referral to the Special Workers’ Compensation Panel, in compliance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Daryl Smith received a serious injury to his right knee as a result of a work-related accident in 1993 when he was employed by Tri-State Steel. Mr. Smith was awarded compensation for his permanent partial disability to his lower right extremity which included lifetime medical benefits for this right knee injury. In January of 2000, Mr. Smith fell, striking his right kneecap at a construction site while in the course and scope of his employment with Southern States Electrical and Plumbing.  Following emergency room care, Mr. Smith was treated by a series of doctors who were furnished by his employer’s workers’ compensation carrier and who provided conservative care which failed to provide relief for his knee injury. Ultimately he was released by the company doctor to return to work without restrictions or impairment. Mr. Smith continued to have difficulty in walking, standing and working on his knee and ultimately sought medical treatment at his own expense with Dr. Richard Fishbein. Dr. Fishbein performed two additional surgeries that ultimately repaired a torn cartilage and damage to the anterior cruciate ligament of the right knee.

Dr. Fishbein attributed this surgical repair to the fall which occurred during Mr. Smith’s employment with Southern States. However, the trial court found that this treatment was related to the original knee injury and was the responsibility of Tri-State Steel under the provisions of Tenn. Code Ann. § 50-6-204. The trial court found that there was no compensable injury as a result of the January 2000 fall and awarded nothing to Mr. Smith. The court ordered Tri-State to pay for the medical care as a part of their obligation to provide future medical benefits for the 1993 injury. Tri-State perfected this appeal. Although Dr. Fishbein found that Mr. Smith had an additional 10 to 12 % more impairment to his right extremity as a result of the 2000 fall, Mr. Smith failed to perfect an appeal of the dismissal of his claim against Southern States. Therefore, this appeal is limited to determining which of the two former employers will be responsible for the medical care that Mr. Smith received and any future care that may be necessitated because of this work-related incident. We find that the proof fails to preponderate in favor of the trial court’s decision and reverse.

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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the trial court erred (1) in awarding temporary total disability benefits, (2) in finding the employee suffered an injurybyaccident, and (3) in awarding permanent partial disability benefits based on 25 percent to the body as a whole. As discussed below, the panel has concluded the judgment should modified by omitting the award of temporary total 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 to the Supreme Court of findings of fact and conclusions of law. The Commissioner determined that the employee had suffered a carpal tunnel injury requiring surgery, that notice was excused, and that employee retained a permanent disability to the left third finger of fifty (50%) percent, and the left second finger of thirty (30%) percent. Employee appeals, insisting that the Commissioner erred in not making the permanent disability award to both arms. The employer appeals the finding that notice was excused. We find that the evidence preponderates in favor of the trial court’s finding that notice was excused, but that the evidence preponderates against limiting the disability to the fingers of the left hand for this carpal tunnel injury. Instead, we find the employee has suffered a permanent partial disability to the left arm in the amount of thirty (30%) percent. Judgment of the Claims Commission affirmed in part and modified.

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) for reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer contends the trial court’s determination of sixty-five percent permanent partial impairment to the lower right extremity is excessive in light of the evidence. We hold that the evidence does not preponderate against the trial court’s findings. Accordingly, 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 the Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. The issue in this case is whether the trial court's award of permanent total disability is supported by a preponderance of the evidence. We find no error and 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 Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee contends the trial court erred (1) when it held that the employee’s phlebitis did not arise out of and in the scope of her employment, (2) in finding that the employee’s torn rotator cuff was not timely reported, and (3) in finding that the employee’s torn rotator cuff did not arise out of and in the scope of her employment.  We affirm the trial court’s finding that the employee’s phlebitis did not arise out of her employment.  However, we reverse the trial court’s findings that the employee’s rotator cuff was not timely reported and did not arise out of and in the course of her employment.

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 to the Supreme Court of findings of fact and conclusions of law. The trial court found that the employee demonstrated a reasonable excuse for failing to give timely notice of his injury to the employer and that the employer was not prejudiced by the delay in notice. The trial court fixed the employee's vocational impairment rating at forty percent. The employer contends that the trial court erred in finding that the employee had a reasonable excuse for failing to give timely notice and that the employer was not prejudiced. The employer also contends that the trial court's award to the employee was excessive in light of the record. We find no error and affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court awarded benefits of thirty-six percent permanent partial disability, finding that the employee had given timely notice of a gradual, work-related injury. The employer contends that the trial court erred in the following: (1) finding both a gradual injury and that the notice requirement under Tenn. Code Ann. § 50-6-201 was satisfied; and (2) finding that the injury was work-related in light of the medical evidence. The employee counters by claiming that the appeal is frivolous. We hold that the judgment of the trial court should be affirmed on both issues, and that the appeal is not frivolous.

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 reporting of findings of fact and conclusions of law. The trial court, in determining whether death benefits for a widow having no dependent children could be commuted to a lump sum payment, held that commutation of periodic payments is not appropriate in the case of a sole surviving spouse due to limitations placed on death benefits under Tenn. Code Ann. § 50-6-210(e)(4) and (8). The widow contends the trial court erred in denying lump sum commutation in that Tenn. Code Ann. § 50-6-229(a) allows lump sum commutation of workers’ compensation and that the Tennessee Supreme Court has previously awarded a lump sum payment of death benefits to a surviving spouse. This Panel, finding that Tenn. Code Ann. §§ 50-6-210 and 50-6-229 should be read in pari materia, concludes that the judgment of 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 the Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. The issues of this case are as follows: (1) whether the trial court erred in finding medical causation; and (2) whether the trial improperly denied employer's motion in limine to exclude the testimony of George Barnard and Dr. David Bradley Seitzinger. We find no error and affirm the judgment of the trial court.