Lowe v. Jefferson 03S01-9605-CV-00060
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Ben W. Hooper Ii,
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. This appeal has been perfected by the employer, Jefferson City Zinc, later identified by stipulation as Savage, Inc., from a ruling by the trial court that the employee, Walter P. Lowe, was totally and permanently disabled as a result of a work-related accident which occurred on October 22, 1992. On appeal there are only two issues. First, the employer questions the trial court's determination of total disability and ordering benefits payable under T.C.A. _ 5-6-27(4) until the employee becomes sixty-five years of age. In the second issue, the employer contends the court was in error in apportioning the award of benefits under T.C.A. _ 5-6-28(a) causing the employer to be liable for 65% of the award and the state Second Injury Fund to be liable for 35% of the award. As to the first question, the employer concedes employee Lowe is totally disabled but argues the award should not be fixed at 1% disability because the medical impairment does not exceed 12% for the last injury and that T.C.A. _ 5-6- 241 limits disability awards to six times the medical impairment, which would be a 72% award. In support of this reasoning, it also contends employee Lowe meets three out of the four factors set out in T.C.A.. _ 5-6-242 and, therefore, the award of benefits would be payable for a period of four hundred weeks. The trial court heard conflicting evidence from several expert medical witnesses. All of this testimony was by deposition. Dr. Robert E. Finelli, a neurosurgeon who had treated the employee for the last injury and several prior injuries, gave a 12% medical impairment for the last injury. Dr. Mark McQuain testified to a 11% impairment. Dr. W illiam E. Kennedy, an orthopedic surgeon, gave a 2% impairment. In addition to this evidence, the court heard testimony from Dr. Kelley W alker, a psychiatrist, who was of the opinion the employee was suffering from a depressive disorder due to his last injury. She assessed his permanent disability as a Class 3, Moderate Impairment, which means his impairment level is compatible with some but not all useful functioning. She told the court the Third and Fourth Editions of AMA 2
Knox
Workers Compensation Panel
Rainey v. Oak Ridge 03S01-9607-CV-00077
Authoring Judge: William H. Inman, 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 alleged that on February 15, 1994, during the course of his employment as a janitor, he suffered a lumbar strain while lifting a trash barrel which resulted in permanent, partial disability. As the case unfolded it developed that the plaintiff had a job-related injury in 1979, requiring surgery, for which he received an award for 21.25 percent permanent partial disability. The medical proof established that the 1994 lifting incident aggravated a long- standing disc problem to the extent of causing some nerve irritation but no anatomical changes. The treating orthopedic physician, Dr. Fred Killeffer, testified that the plaintiff had a four percent impairment attributable to the 1994 accident, but opined that he should not continue to work as a painter or custodian. The defendant offered the plaintiff continued employment at the same wages, with an accommodation for the restrictions recommended by his physician. The plaintiff testified that he attempted to work but could not do so within the lifting restrictions. The trial judge found that the plaintiff was unable to return to his former employment and awarded him "six times his aggravation of a pre-existing condition which is 24 percent to the body as a whole." We assume this finding is intended to mean six times the impairment of four percent attributable to the 1994 injury. The plaintiff appeals, insisting that his entitlement should not have been limited to six times his impairment because he met three of the four criteria set forth in Tenn. Code Ann. _ 5-6-242 and thus should have been awarded a greater degree of disability. Pursuant to the provisions of Tenn. Code Ann. _ 5-6-242, a trial court may award an employee permanent partial disability benefits in excess of the maximum disability allowed by applying the multiplier but not to exceed 4 weeks. In such cases, there must be clear and convincing evidence to support at least three of the following four criteria: 2
Knox
Workers Compensation Panel
Evelyn Campbell, a/k.a Elvin Campbell, Erma Dorton and Edria Humphrey, vs. Union Planters Bank , Formerly Commerce Federal Savings Bank E1999-01910-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
In this action to recover on two certificates of deposit against the bank, the Trial Judge directed a verdict in favor of the plaintiffs after sustaining an objection to the bank's attempt to offer its business records in evidence. The bank has appealed, and we reverse and remand for a new trial.
Hamblen
Court of Appeals
Jantice L. West v. Nashville Tent & Awning Company, Inc. and General Accident Insurance Company 01S01-9501-CH-00008
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Irvin H. Kilcrease,
This case is before the Court upon a motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion affirming the dismissal of the plaintiff's claim for workers' compensation benefits on the grounds that it was untimely under the statute of limitations.
Williams v. Sweetwater 03S01-9607-CH-00084
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Earl H. Henley,
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. Plaintiff alleged a work-related aggravation of a pre-existing non-work-related back condition. She alleged that medical expenses and temporary total disability benefits had been paid by the employer but sought permanent partial disability, future medical expenses and discretionary costs. The trial court found that the temporary aggravation of her back condition had resolved with no permanent impairment and awarded no future benefits. We affirm the judgment of the trial court. Plaintiff, a registered nurse, injured her back at home in June, 1992. Dr. David Hauge, orthopedic surgeon, performed lumbar disk surgery at L4-L5 on November 19, 1992 and returned plaintiff to work the following January with lifting restrictions. Plaintiff alleged that on January 25, 1993, she re-injured her back while lifting a patient at work. Dr. Hauge placed her on temporary total disability for three weeks and treated her conservatively, after which she returned to work again. Dr. Hauge opined that 2 percent of patients who have disk surgery experience recurrent herniations of the same disk. There are various causes of such recurrences, some related to the surgery itself and some which are due to just normal activity. He could not state within reasonable medical certainty whether or not plaintiff's recurrent herniation was work-related. Dr. Hauge opined that the original, non-work-related injury resulted in eleven percent permanent partial disability to the body as a whole: "I would state that the 11% impairment to the body . . . is a result of the injury she sustained in June, 1992 and her subsequent surgery. The percentage impairment this patient has did not change as a result of the January, 1993 incident, although it certainly can be argued that she was much more likely to have an aggravation requiring medical treatment because of the existence of this previous problem." Our review of the findings of fact made by the trial court is de novo upon the 2
