Kathy Reynolds v. Life Care Centered of America 02S01-9703-CV-00015
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. C. Creed Mcginley, Judge
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 awarded the plaintiff 5% permanent partial disability to the right arm and 25% to the left arm. The trial court also awarded temporary total disability for the period between 6/3/95 and 1/16/96 (22 weeks) at the $152.24 compensation rate totaling $5,23.92 , medicals and mileage, future medical on arms only, attorney's fees in lump sum and discretionary costs. We affirm the judgment of the trial court. The plaintiff is a 55-year-old female with a tenth grade education. She has work experience in a factory and experience cleaning and working on boats. She started working for the defendant in 1993 as a certified nursing assistant. Plaintiff's duties for the defendant included making beds, feeding, shaving and bathing patients and turning them in their beds. These job activities require lifting, bending, and manipulating of the patients and the objects around them. On May 1, 1995, the plaintiff, while attempting to lift a patient into a chair with the aid of a fellow employee, fell forward striking her arm on the chair. She alleged that this accident caused damage to her neck, shoulder and right arm. The trial court did not find adequate proof to substantiate an injury to the neck. Only the questions of causation and the amount of permanent partial disability to the right and left arms are before us for review. The plaintiff testified that she complained of the injury to her right arm to her charge nurse on the date of the accident and again on the next day. The plaintiff testified on cross-examination that she first saw Dr. Portis to whom, she believes, she related the details of her accident. However, Dr. Portis' medical records do not reveal that the plaintiff informed him of the details of her accident. The plaintiff then saw Dr. Warmbroad on June 9, 1995. She admits that she did not tell him about the fall. In June of 1995, the plaintiff also saw Dr. Anthony Segal. She did not give a history of injury or trauma to her right arm to him. Dr. Segal thought that the carpel
Benton
Workers Compensation Panel
Rutherford v. Cross 03S01-9611-CV-00114
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. James B. Scott, Jr.,
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 plaintiff filed this workers' compensation claim on July 29, 1993, alleging that on April 15, 1991 he discovered that he was permanently and totally disabled from work due to coal workers' pneumoconiosis ["black lung disease"]. The defendants answered that the plaintiff had retired from their employ on February 6, 1991 under their regular old age retirement program and they had no information about any alleged work related disability. After a hearing on the merits, the trial court found the plaintiff "had not sustained his burden of proof of establishing his claim for occupational disease benefits arising out of his black lung condition" and dismissed the complaint. We affirm the judgment of the trial court. The plaintiff is now 69 years old. He has been receiving old age retirement benefits from the Social Security Administration and from the defendants since February 6, 1991. He has applied for black lung benefits from the U. S. Department of Labor on three occasions. Two of those applications were denied. The defendants sought, by Motion to Consider Post-Judgment Facts in this case, to have the results of the third Department of Labor adjudication admitted as evidence; however, the Motion was denied as inappropriate under RULE 14(a), TENN. R. APP. P. The plaintiff contends that the medical evidence proves that he was totally and permanently disabled from work at the time of his retirement under old age programs, notwithstanding the fact that he was working full-time up to the day he retired. To support this claim, he introduced at trial the medical evidence previously submitted to the Department of Labor in his black lung claims; his testimony and that of his wife; an independent medical evaluation by Dr. Glen Baker performed on October 6, 1993; and the testimony of Dr. Norman Hankins and Ms. Kelly Lenz, vocational experts who performed a vocational evaluation in October 1994. The thrust of plaintiff's argument for award of workers' compensation benefits is that the trial court and this Panel are required to apply federal standards in making our determinations and that under 2 C. F. R. _ 718.34, he is irrebuttably presumed 2
Knox
Workers Compensation Panel
Craig Warrington v. Emerson Electric Co. 02S01-9703-CH-00024
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. George R. Ellis,
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 granted the defendant's "Motion to Dismiss" finding that the plaintiff had failed to carry his burden of proof of causation between the alleged work injury and the permanent impairment. We find that the evidence preponderates in favor of the trial court's decision and we affirm. The plaintiff alleged that "on or about" October 5, 1995 he sustained an injury when he twisted his neck and back, while running a press. Plaintiff was 42 years old at the time of the trial. He claimed that he had no pain or other problems with his neck and back prior to beginning work on October 3, 1995 at Emerson Electric Company. At approximately 1: a.m. on October 4, 1995, plaintiff claimed that he began experiencing pain in his neck and shoulder at which point he informed his supervisor, Jimmy Barber, that he was injured. The plaintiff did not receive medical attention at that time and continued to work the remainder of his shift on that day and the next. On Friday, October 5, 1995, plaintiff claims that he left a message on "the answering machine in the press room" that due to his pain he would not be at work and that he was going to see a doctor. Plaintiff first saw Dr. Tettleton, a chiropractor in Humboldt, on Friday, October 5, 1995. Dr. Tettleton performed a manipulation on the plaintiff to temporarily relieve his pain. The following Monday, at plaintiff's behest, Dr. Tettleton arranged an appointment with Dr. Dirk Franzen, a neurosurgeon in Jackson, Tennessee. Dr. Franzen examined plaintiff and recorded his statement that he "had woken up about a week ago with a crick in his neck." More important, Dr. Franzen noted that the history given to him by the plaintiff mentioned no definite inciting events and no injuries. Dr. Franzen subsequently performed surgery on the plaintiff at the C5-6 disc which improved, but did not resolve the symptoms. Dr. Franzen assessed plaintiff's impairment at 11%. Our review is de novo on the record accompanied by a presumption that the findings of fact made by the trial court are correct unless the evidence preponderates otherwise. TENN CODE ANN. _ 5-6-225(e). The plaintiff in a workers' compensation suit has the burden of proving every element of his case by a preponderance of the
The plaintiffs, Marvin and Ellyse McCarley, appeal the summary dismissal of their complaint alleging that Mr. McCarley received food poisoning after ingesting food improperly prepared by the defendant, Kentucky Fried Chicken. The trial court granted the defendant's motion for summary judgment. The Court of Appeals affirmed and held that the plaintiffs' proof was insufficient to establish the element of causation. We granted appeal to address: (1) the Court of Appeals' analysis in summary judgment dispositions; and (2) the quantum and type of proof plaintiffs must proffer to survive summary dismissal in negligent food poisoning cases. Upon review, we reverse and remand for further proceedings consistent with this opinion.1
I dissent from the majority's holding that the jury's consideration of the invalid aggravating circumstance was harmless error. Thos not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a ... judgement, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.
The appellant, Freddie King (petitioner), appeals as of right from a judgment of the trial court dismissing his action for post-conviction relief following an evidentiary hearing. In this court, the petitioner contends (a) his guilty pleas were not voluntarily, intelligently, and understandingly entered and (b) the trial court failed to advise him of his constitutional right against self-incrimination before questioning him during the submission hearing. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issues presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed.
The issue in this post-conviction death penalty appeal is whether the jury’s reliance on an invalid aggravating circumstance was harmless error, or whether resentencing is required because there is reasonable doubt that the sentence would have been the same had the jury given no weight to the invalid aggravating factor. The jury relied on a valid aggravating factor, that the defendant had a prior conviction for a violent felony offense (second-degree murder), and an invalid aggravating circumstance, that the victim was killed during the commission of a felony.1
This is an appeal from a summary judgment in a medical malpractice case. The trial 2 court entered an order of summary judgment on behalf of Defendant, Dr. Kenneth Kudsk (“Dr. Kudsk”). Plaintiffs, Josephine Brown ( “Brown”), Whitfield Brown, and Earline Culp, appeal the judgment citing, inter alia, errors in the trial court’s granting of summary judgment when the Plaintiffs’ expert affidavits and deposition testimony were proper responsive proof to the Defendant’s motion for summary judgment. For reasons stated herein, we affirm the trial court’s judgment.
Timothy P. Mullinax v. Wabash Alloys & Cigna Ins. Co. 01S01-9702-CV-00034
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Allen Wallace,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer and its insurer contend the evidence preponderates against the trial court's finding that the employee has a ten percent permanent medical impairment and in favor of a finding that the employee has a five percent medical impairment rating. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Mullinax, suffered a compensable low back injury on August 3, 1995, when he was hit in the head by a steel beam and knocked ten or fifteen feet onto his back. He was referred by the employer to a chiropractor, who referred him to Dr. Verne Allen for treatment of pain in his left shoulder and arm, low back pain and problems with his hips and legs. The doctor ordered an MRI and myelogram, restricted him from lifting more than forty pounds occasionally or twenty pounds repetitively, and assessed his permanent medical impairment at five percent to the whole body, without performing any range of motion tests. He told the claimant there was nothing anybody could do for him. The claimant was referred, apparently by his attorney, to Dr. Robert Barnett, for examination and evaluation. After considering the claimant's history, results of scientific tests and range of motion tests, Dr. Barnett restricted the claimant from any heavy lifting, repetitive lifting, bending, stooping, bending or squatting, and assessed his permanent impairment at ten percent to the whole body. Both doctors based their opinions on appropriate guidelines and both are eminently qualified experts in their fields of specialty. Dr. Allen is board certified in neurological surgery, Dr. Barnett in orthopedic surgery. The trial judge accepted the opinion of Dr. Barnett and rejected that of Dr. Allen. Appellate review of a finding of fact in a workers' compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Accordingly, we have conducted an independent examination of the record to determine where the preponderance of the evidence lies.
