WORKERS COMPENSATION PANEL OPINIONS

Howard McAbee (“Employee”) was employed by Crown Automotive Group, Incorporated, (“Employer”), as a courtesy van driver. On August 2, 2013, Employee sustained injuries to his hip when he fell to the ground during a scuffle with a co-worker. After the scuffle, Employer fired Employee and his co-worker. Employer denied Employee’s claim for workers’ compensation benefits asserting the injury did not arise out of the employment and the injury was caused by Employee’s misconduct. The trial court found that the injury was compensable as it arose out of and in the course of employment and that Employee was permanently and totally disabled. The trial court ordered Employer to pay Employee’s permanent disability benefits in a lump sum. Employer has appealed contending, the trial court erred by finding the case compensable; finding Employee permanently and totally disabled rather than limiting the award based on the statutory cap when there was misconduct; awarding a lump sum payment; and ordering Employer to pay medical expenses. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

Barbara Rains (“Employee”) filed this action in the Circuit Court for Hardin County, alleging that she sustained a back injury in the course of her work as a cashier for Wal-Mart (“Employer”). The issues were bifurcated, with compensability to be tried first and any remaining issues to be heard later. After the hearing about compensability, the trial court found that Employee had failed to sustain her burden of proof and dismissed the complaint. Employee has appealed, alleging various errors by the trial court. The 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 pursuant to Tennessee Supreme Court Rule 51. Because Employee failed to present any expert medical evidence to support her claim, we conclude that the trial court’s finding regarding compensability was correct. All other issues raised by Employee are pretermitted. Therefore, we affirm the judgment.

Jeffrey Scott Beck (“Employee”) filed a workers’ compensation complaint claiming he suffered a back injury six months earlier during the course and scope of his employment with the City of Brownsville (“Employer”). Employer denied that the alleged injury arose out of his employment and maintained that Employee failed to give timely notice of the alleged injury. The trial court determined that Employee’s notice was untimely and that Employee’s excuse for not providing timely notice was unreasonable. The trial court also concluded that Employee failed to establish causation. Employee appealed. The 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 pursuant to Tennessee Supreme Court Rule 51. Following our review, we affirm the trial court’s judgment.

The issue in this workers’ compensation appeal is whether a Tennessee trial court had subject matter jurisdiction over a workers’ compensation claim.  James and Elizabeth Russell, residents of Johnson City, Tennessee, were employed by Transco Lines, Inc. (“Employer”), an Arkansas company headquartered in Russellville, Arkansas.  The Russells, who were team truck drivers, were injured on July 5, 2013, in a motor vehicle accident near Shreveport, Louisiana.  Employer and its insurer, Triangle Insurance Company (“Insurer”), accepted the Russells’ workers’ compensation claims as compensable and paid benefits under Arkansas law.  In October 2013, the Russells, through their counsel, filed a Request for Benefit Review Conference with the Tennessee Department of Labor.  No additional action occurred in Tennessee, and benefits continued to be paid according to Arkansas law.  After the administrative process was exhausted, the Russells filed this action in the Circuit Court for Washington County against Employer and Insurer, requesting compensation benefits under the workers’ compensation laws of Tennessee.  Employer argued that the trial court did not have subject matter jurisdiction over the claim and that even if it had jurisdiction, the Russells had made an election of remedies and were precluded from pursuing benefits in Tennessee.  The trial court ruled for the Russells, holding that it had subject matter jurisdiction and that the Russells had not made an election of remedies.  The trial court awarded Mr. Russell 65% permanent partial disability and Ms. Russell 85% permanent partial disability.  Employer and Insurer appealed.  The 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 pursuant to Tennessee Supreme Court Rule 51.  We affirm the judgment of the trial court.

Charles Steven Blocker (“Employee”) sustained a compensable injury to his cervical spine in November 2010.  Surgery was required to treat the injury.  He was able to return to work for Powell Valley Electric Cooperative (“Employer”) after that injury.  His claim for workers’ compensation benefits was settled.  Employee suffered a second, gradual injury to his cervical spine in January 2013.  He was unable to return to work after that injury.  He brought suit in the Chancery Court for Claiborne County against Employer and the Tennessee Department of Labor and Workforce Development, Second Injury Fund (“the Fund”).  The parties stipulated that Employee was permanently and totally disabled.  The only issue presented to the court was apportionment of the permanent total disability benefits between Employer and the Fund.  The trial court found that the second injury had caused a 9% permanent partial disability without reference to the prior injury.  Benefits were apportioned 9% to Employer and 91% to the Fund.  The Fund has appealed, contending that the trial court incorrectly apportioned the award.  The 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 pursuant to Tennessee Supreme Court Rule 51.  We reverse and remand for further proceedings.

Victor Dunn (“Employee”), a Tennessee resident, was injured in Iowa while working for Tradesmen International, Inc. (“Employer”).  Employer accepted the injury as compensable but disputed Tennessee’s jurisdiction over the claim, contended that any award of permanent disability benefits should be limited to one and one-half times the impairment rating, and disagreed with Employee’s calculation of his average weekly wage.  The trial court held that it had jurisdiction, that the claim was not “capped,” and that Employee’s proposed average weekly wage was correct. It awarded permanent partial disability benefits of 25% to the body as a whole.  Employer has appealed, arguing that the trial court’s ruling on the average weekly wage issue was incorrect. The 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 pursuant to Tennessee Supreme Court Rule 51.  We affirm the judgment.

Donald Brown (“Employee”) filed this action, alleging that he sustained a compensable heart attack while working for Grand Eagle Company (“Employer”).  After a hearing on the merits, the trial court found that Employee had failed to satisfy his burden of proof that the heart attack was caused by an acute, immediate, stressful event.  Judgment was entered for Employer.  Employee timely filed a notice of appeal to the Supreme Court, and the 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 pursuant to Tennessee Supreme Court Rule 51.  We affirm the judgment.

The issue in this workers’ compensation appeal is whether the employer is entitled to summary judgment. The employee filed a claim for workers’ compensation benefits, alleging he injured his foot in the course and scope of his employment. His employer denied the claim, citing a lack of medical proof that the injury was job-related. The Court of Workers’ Compensation Claims denied a motion for summary judgment filed by the employer, finding there was a genuine issue of material fact as to whether the work injury contributed more than fifty percent in causing the injury. The Workers’ Compensation Appeals Board reversed and dismissed the case, holding that the employee failed to produce sufficient evidence that his foot condition arose primarily out of and in the course and scope of his employment. After careful review, we affirm the decision of the Workers’ Compensation Appeals Board. 

Paula Dugger (“Employee”), a home health nurse, was injured in a motor vehicle accident while returning to her home from an attempt to travel to a patient’s residence. Home Health Care of Middle Tennessee (“Employer”) denied her claim, contending that the injury did not occur in the course of her employment. Employee sought temporary benefits from the Court of Workers’ Compensation Claims (“trial court”). The trial court denied her petition, and that denial was affirmed by the Workers’ Compensation Appeals Board. Upon remand to the trial court, Employer filed a motion for summary judgment on the issue of compensability. The motion was supported by a set of agreed facts submitted by the parties. The trial court granted Employer’s motion and entered an order dismissing Employee’s claim. Employee appealed directly to the Supreme Court, as permitted by Tennessee Code Annotated sections 50-6-225(a)(1) (2014) and 50-6-239(c)(7) (2014). The 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 pursuant to Tennessee Supreme Court Rule 51. We reverse and remand.

Marilyn Miller Tansil (“Employee”) obtained temporary total disability benefits after injuring herself while mopping. Atkinson Enterprises, Inc. (“Employer”) acknowledged a compensable injury, but claimed Employee was not entitled to temporary benefits because she worked for her own company while unable to work for Employer. The trial court found Employee performed only token tasks at her company during her injury period, which did not constitute “work,” and thus, denied Employer’s requested credit against the permanent partial disability award. On appeal, Employer challenges the award of temporary total disability benefits as well as the multiplier used. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

On August 2, 2012, an employee sustained a compensable injury when a co-worker ran over the back of his left foot with a forklift. The employee received temporary disability benefits and medical benefits from his employer. The employee’s treating physician assigned a 20% permanent anatomical impairment to his left leg as a result of the injury. The employer sought a second opinion, and after performing a medical records review, the employer’s physician opined that employee had sustained only 5% permanent impairment to his left leg due to the injury. Based on this second opinion, the employer requested an evaluation through the medical impairment registry (“MIR”) program. After examining the employee and reviewing his medical records, the MIR physician also opined that the employee had sustained 5% permanent impairment to his left leg. However, the trial court found the employee had rebutted by clear and convincing evidence the presumption of correctness statutorily attached to the MIR physician’s rating, applied a multiplier of four, and awarded the employee 80% permanent partial disability (“PPD”) to the left leg. The employer has appealed, contending the trial court erred in finding that the employee had rebutted the MIR physician’s impairment rating by clear and convincing evidence and in applying a multiplier of four. The employee, in contrast, contends that the trial court erred in considering the MIR physician’s opinion at all. This 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 pursuant to Tennessee Supreme Court Rule 51. We reverse and modify the trial court’s judgment and remand to the trial court for entry of an order consistent with this decision.

Employee, a truck driver, fell while climbing into the cab of Employer’s truck, which was parked at Employee’s home. Employer initially accepted the claim as compensable, but later denied it, asserting that Employee was not in the course of his employment when the injury occurred. The trial court found the injury to be compensable and awarded benefits. The trial court also granted a post-trial motion ordering Employer to pay for Employee’s independent medical evaluation (IME). Employer has appealed. The 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 pursuant to Tennessee Supreme Court Rule 51. The order requiring Employer to pay the cost of the IME is reversed. The remainder of the judgment is affirmed.

Brandon Thompson (“Employee”) worked as a delivery driver for United Parcel Service (“Employer”). He sustained a compensable injury to his lower back on January 18, 2012. He did not return to work for Employer. After the Benefit Review process was exhausted, he filed this action, seeking permanent total disability benefits. The trial court concluded that Employee was not totally disabled and awarded 44% permanent partial disability benefits. Employee has appealed, contending that the evidence preponderates against the trial court’s finding that he was not permanently and totally disabled. He also claims that the judgment entered by the trial court is defective because it does not include certain findings. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Tony Gray (“Employee”) sustained a back injury on August 6, 2013 while working as a chief engineer at the Hyatt Place Hotel Airport in Nashville, Tennessee (“Employer”). Employee’s injury occurred while lifting and moving thirty rolls of carpet padding. After notifying Employer of his back injury, Employee was referred to Concentra Medical Clinic, where he was subsequently diagnosed with a back sprain and prescribed physical therapy. Employee experienced a slight improvement in his condition and was released in September 2013 to full-time work for a trial period in a light duty capacity. Upon his return to Employer, Employee was terminated for several issues relating to his job performance. Employee’s symptoms worsened, and he eventually required lower back surgery. He did not return to work for any employer thereafter. Based on Employee’s physical injuries, the trial court determined that Employee was permanently and totally disabled. Employer appealed, arguing that the trial court erred in its determination of permanent and total disability. Pursuant to Tennessee Supreme Court Rule 51, the appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Upon our review of the record and the applicable law, we affirm the judgment of the trial court. 

In October 2011, Holly Grissom (“Employee’) entered into a settlement agreement with United Parcel Service (“Employer”), resolving her workers’ compensation claim for an April 2007 injury.  In April 2013, Employer declined to authorize a procedure ordered by the authorized physician.  Employee filed a motion to compel Employer to authorize the procedure.  The trial court ordered Employer to pay $187.00 to Employee and to provide future medical care to her.  A second motion was filed, and the parties entered into an agreed order which again required Employer to pay $187.00 and reimburse Employee for mileage to and from medical treatment.  Employee petitioned for an award of attorney’s fees.  The court awarded fees and expenses in the amount of $27,353.63.  Employer has appealed from that order.  The 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 pursuant to Tennessee Supreme Court Rule 51.  We affirm the judgment.

The defendant, Dylan Ward Hutchins, appeals the Washington County Criminal Court’s denial of his request for judicial diversion from his mitigated statutory rape conviction, arguing that the trial court failed to consider and properly weigh all relevant factors and improperly considered facts outside the record in rendering its decision. Following our review, we affirm the judgment of the trial court denying diversion. However, we remand to the trial court for entry of a corrected judgment reflecting the conviction offense as mitigated statutory rape.

Eric Benson (“Employee”) worked for Southern Electric Corporation of Mississippi (“Employer”) as a lineman. On July 12, 2011, he sustained an electric shock injury while working on a power line. The mechanism of the injury is not known, as Employee has no recollection of the incident nor were there any witnesses. He sustained burns to his back and groin area  and the left side of his head. He bit his tongue severely and injured his right knee. He further asserted he developed depression, headaches and post-traumatic stress disorder (“PTSD”) as a result of the accident and contended he was totally and permanently disabled due to his injuries. Employer disputed the assertion. After a trial on the merits, the Chancery Court for McNairy County found Employee permanently and totally disabled and entered judgment accordingly. Employer appealed. The Supreme Court referred the appeal to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

In 1992, Terry Campbell (“Employee”) suffered injuries to his lumbar and cervical spine as a result of a workplace accident. In 1998, the trial court awarded permanent and total disability benefits and ordered the employer’s insurer, American Mining Insurance Company (“Insurer”), to provide medical treatment in accordance with Tennessee Code Annotated section 50-6-204. Dr. Gregory Ball was Employee’s treating physician. In 2008, and again in 2010, Employee filed contempt petitions alleging Insurer failed to provide medical treatment recommended by Dr. Ball. On each occasion, the trial court found in favor of Employee. In 2013, Insurer filed a petition, asserting Dr. Ball’s treatment was neither reasonable nor necessary and seeking the removal of Dr. Ball as Employee’s physician. The trial court denied the petition and awarded attorney fees to Employee. Insurer appealed, asserting the trial court erred by denying its petition and awarding attorney fees. The Supreme Court referred this appeal to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

An X-ray technician sought workers’ compensation benefits for disability arising from migraine headaches she alleged were caused by exposure to chemicals at her workplace. Her employer denied the claim, asserting her condition did not arise out of and in the course and scope of her employment. The trial court held that the employee’s claim was compensable and awarded her permanent and total disability benefits. On appeal, the employer argues that the trial court erred in finding the employee’s claim was compensable and in awarding her permanent and total disability benefits. After careful review, we affirm the judgment.

In this workers’ compensation case, the trial court found that the employee failed to carry his burden of proving that his knee injury arose out of his employment. On appeal, the employee asserts that the trial court erred in finding that his knee injury did not arise out of his employment. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the trial court’s judgment.

An undocumented employee sustained a compensable work-related injury and reported the injury to the employer. Two doctors examined the employee, one assigning a 16% medical impairment rating and the other assigning a 24% medical impairment rating. Because of the employee’s undocumented status, the employer did not return the employee to work after the injury. The employee sought workers’ compensation benefits and challenged the constitutionality of the statutory provision potentially limiting his award to one and one-half times the medical impairment rating in such circumstances. See Tenn. Code Ann. § 50-6-241(e) (2008 & Supp. 2013). The Attorney General filed an answer defending the constitutionality of the challenged section. The trial court held the challenged statute unconstitutional on the basis of federal preemption and awarded permanent partial disability benefits of 84% to the left arm, or three and one-half times the 24% medical impairment rating. The Attorney General and the employer appealed. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Mamie Marshall (“Employee”) developed a gradual shoulder injury as a result of her work for Pinnacle Food Group (“Employer”). She underwent three surgeries and was eventually referred to a pain management specialist. After the third procedure, she was placed in a modified duty job. Two months after her return to work, she retired. Two of her treating physicians assigned 4% impairment to the body as a whole. Employee’s evaluating physician examined Employee on three occasions and assigned impairments of 7% to the body as a whole after the second surgery and 11% to the body as a whole after her retirement. A physician chosen from the Medical Impairment Registry (“MIR”) assigned 4% impairment to the body as a whole. The trial court found that Employee overcame the presumption of correctness attached to the MIR physician’s rating and adopted the evaluating physician’s 11% impairment. The trial court also found that Employee did not have a meaningful return to work and awarded 66% permanent partial disability to the body as a whole. Employer has appealed, contending the evidence preponderates against the trial court’s findings concerning impairment and meaningful return. The appeal was referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51. We modify the judgment.