Anthony Neal Bates v. Cooper Industries, et al. 01S01-9604-CV-00065
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Anthony Bates,
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. In this appeal, the employer and its insurer contend the evidence preponderates against the award of permanent partial disability benefits. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Bates, is thirty-six years old and a high school graduate. He has done nursery, construction, farming, factory and supervisory work. On September, 4, 1992, while lifting a thirty to forty pound box of coil springs to fill a customer's order, he strained his upper back. After a brief period of recuperation, during which he was treated conservatively by a neurological surgeon, he returned to work with weight lifting restrictions. On May 26, 1994, he strained his lower back in another lifting accident at work and was treated by the same doctor. The doctor again treated the claimant conservatively and returned him to work. The treating doctor and two others to whom he was referred, one an orthopedist and one a pain management specialist, assigned zero percent permanent impairment, using appropriate guidelines. The claimant was referred by his attorney or his family physician to another orthopedic surgeon, who diagnosed cervical and lumbar sprain and assigned a five to ten percent permanent whole person impairment. The disagreement is over whether the injury is in "category one" or "category two," as defined by the guidelines, which involves "a judgment call." The claimant has been terminated because the employer was unwilling to offer him a job within his lifting restrictions. A vocational expert has estimated the claimant's industrial disability at fifty-five to sixty percent. The claimant's own testimony is that he is able to work at a job not requiring repetitive or heavy lifting. The trial court awarded permanent partial disability benefits based on forty-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the evidence to determine where the preponderance of the evidence lies.
DeKalb
Workers Compensation Panel
Stephen Baxendale v. Universal Underwriters Insurance 01S01-9605-CH-00097
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Irvin H. Kilcrease,
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. In this appeal, the employee or claimant, Baxendale, contends (1) the award of permanent partial disability benefits is inadequate and (2) the trial court erred in computing his compensation rate. The employer and its insurer contend the trial court erred in finding the employee suffered a compensable injury by accident on June 6, 1994. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified and the judgment otherwise affirmed. The claimant is a thirty-five year old laborer with a ninth grade education. He failed a test for a GED. At the time of the claimed injury, he was earning $6.39 per hour. Beginning in October of 1992, he suffered back pain at work, but continued working while being conservatively treated for pain. At one time the treating physician assigned to him a four percent permanent whole person impairment rating. He was awarded permanent partial disability benefits based on ten percent to the body as a whole and returned to work as a laborer at the same wage rate he was earning before the injury. On June 6, 1994, he became disabled to work because of severe back pain and was diagnosed as having suffereda gradually developing ruptured disc. The doctor surgically removed the ruptured disc and estimated his permanent whole person impairment at nine percent, from appropriate guidelines. After recovering from the surgery, the claimant again returned to work at the same wage as before the disabling injury, but with significant lifting, bending, stooping and twisting restrictions. Another orthopedic surgeon evaluated the claimant and assigned a whole person impairment rating of ten percent, using different but equally appropriate guidelines. The claimant continued to suffer back pain while working as a warehouseman. Upon consideration of the above facts, the chancellor awarded permanent partial disability benefits on the basis of ten percent to the body as a whole for the June 6, 1994 injury, and fixed the claimant's compensation rate at $159.47 per week. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Davidson
Workers Compensation Panel
Insurance Company of North America v. Ronnie Storie 01S01-9602-CV-00037
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Conrad E. Troutman,
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 issue presented by this appeal is whether the evidence preponderates against the trial court's finding that the employee's injury was proximately caused by intoxication. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for an award of benefits. The claimant or employee, Storie, is forty-five years old and has an eighth grade education. On March 18, 1993, he reported to work at 6:3 p.m. at Kentucky Apparel to perform his usual duties as a maintenance mechanic. During the course of the shift, he needed to obtain some copper tubing and light bulbs to perform his duties. Those supplies were stored above a dropped ceiling above the maintenance office and accessible by a ladder and some loose boards. The claimant negotiated the ladder without a problem, but slipped and fell when one of the loose boards moved. He fell through the ceiling and onto a concrete floor in the men's rest room below, frightening a user, who beat a hasty exit and reported the accident. The claimant suffered multiple injuries, including a broken arm and back injury. We find in the record no direct evidence the claimant was intoxicated at the time. In fact, he had apparently performed his duties satisfactorily until the accident occurred. The injurious accident occurred shortly before 2:45 a. m. on March 19th. After some delay, he was driven to the Fentress County Hospital by a co-worker, arriving at about 3: a. m. When no doctor was available to treat his arm injury, he was transported to the Putnam County Hospital. When he arrived there at about 6:3 a. m., he smelled of alcohol and a blood alcohol test revealed an alcohol content of approximately .2 percent. The claimant insists he consumed the alcohol, retrieved from his own vehicle at the plant and provided by a friend while waiting for medical attention, after the accident, to help relieve pain associated with his injuries. The trial court disallowed the claim as being proximately caused by intoxication. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6- 225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
