Don Birchfield v. Hardwood Frames of America

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court dismissed the complaint finding the action was not filed within the one year period of the statute of limitations. Judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. Jimmy W. Bilbo, of Cleveland, Tennessee, for Appellant, Don Birchfield. Kent T. Jones, of Chattanooga, Tennessee, for Appellee, Hardwood Frames of America. MEMORANDUM OPINION Plaintiff, Don Birchfield, has appealed from the trial court's action in dismissing his complaint. The court ruled the action had not been filed within the one year period provided by the statute of limitations. Basic Facts Employee Birchfield was forty-one years of age and had completed the eleventh grade in school. He later obtained a GED certificate. On October 15, 1998, while employed by the defendant, Hardwood Frames of America, he was working on an assembly line when a load of wood pinned him against a metal buggy. He was sent to a medical facility, Health Works of Tennessee, where he was seen on several occasions. X- rays revealed a fracture in his right arm. He later saw Dr. Rickey Hutcheson for four visits from October 3, 1998 to February 5, 1999. Birchfield testified he never returned to work after the accident because he was on strong pain medication and because he had constant pain in his elbow and some numbness in his hand. His employer paid for his treatment at Health Works and for seeing and being treated by Dr. Hutcheson. It was stipulated that the last payment of a medical expense was in August 1999. During his employment career, he has had other workers' compensation claims with different employers and the record indicates he has other health problems for which he is being treated. The complaint was filed on January 16, 21, which was 27 months after the accident and over 16 months after the payment of a last medical expense. Medical Evidence Dr. Rickey Hutcheson, an orthopedic surgeon practicing in Cleveland, Tennessee, testified by deposition. He stated he examined the x-ray which was taken at Health Works and thought it might be an old fracture. He said he had mild swelling and his elbow was bruised. After several visits he released him to return to light duty work but did not realize until later that he did not go back to work. On a later visit during November 1999, he said the employee could straighten his arm completely and seemed to not have as much pain. The doctor was of the opinion he did not have any permanent impairment. Dr. Frank H. Wood, a family practice and emergency medicine physician practicing in McCoysville, Georgia, testified by deposition. He began seeing the employee on February 1, 1999 for some of his other health problems and he stated he was not given a history about any injury to his elbow until late October or early November 2. He initially testified the employee had a 1 percent impairment as a result of the accident in question but admitted he had not looked at the AMA Guidelines for two to three years. He said he had been using the 1987 Edition and had never seen the 4th Edition. During the examination he was given the 4th Edition and changed his opinion several times concerning impairment. As we read the record, he appeared to finally settle on 6 percent impairment to the right arm or 3 percent to the whole body. Other questions and answers indicated he was fixing a percentage of disability rather than impairment to the body as he was considering the employee's age, education, job opportunities, etc. Findings of Trial Court The trial judge was very troubled by the evidence of Dr. Wood and specifically found she could not rely on same. The complaint was dismissed because the statute of limitations had expired. -2-