Terry Hambrick v. Vecellio & Grogan, Inc. 03S01-9603-CH-00030
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Thomas J. Seeley, Jr.
This workers' compensation appeal has been referred to the Special W orkers' 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 drove a heavy truck for the defendant's construction firm. When asked to tell the Court "what happened when you got hurt," he replied: Well I was backing up to get loaded and the loader operator picked one, a big old rock up and he went to put it in the bed of the truck and when he did, he started to let it down and the rock just come out all at once. And when it did, it just rattled, you know, just shook the truck around and around. The accident occurred August 4, 1993. He was seen by Dr. Judson McGowan, an orthopedic specialist, on August 1, 1993, complaining of neck and thoracic spine pain. His condition was diagnosed as acute cervical lumbar strain which was treated conservatively over many months involving sophisticated testing procedures and referrals to specialists in other disciplines, some of whom believed the plaintiff had a psychological overlay with magnification of symptoms. Dr. McGowan testified that "this patient is heading toward the road of a chronic pain syndrome," that he had a five to ten percent impairment, and that he was able to return to lighter work. Dr. Stephen Kimbrough, a neurologist, saw the plaintiff on February 9, 1993, for the evaluation of neck and arm pain. He found no nerve involvement and little or no pathology. He believed that the plaintiff had some pain but "felt that it was somewhat exaggerated and there was some overlay to the pain as well." Like Dr. McGowan, he thought the plaintiff was likely a candidate for chronic pain syndrome, and that he exaggerated his symptomatology. He expressed no opinion about impairment, but felt that he could return to work. Dr. Paul Brown, a specialist in internal medicine and cardiology, testified that he had treated the plaintiff for a number of years for various illnesses, one of which was hypertension which he attributed in part to pain, but he declined to reference the hypertension to the accident and expressed no opinion about impairment. 2
03C01-9508-CC-00232 03C01-9508-CC-00232
Trial Court Judge: James B. Scott, Jr.
Anderson
Court of Criminal Appeals
Sidney Eugene Abbott and Willie Bean v. Firestone Tire & Rubber Co. and Liberty Mutual Insurance Company 02S01-9510-CV-00097
Authoring Judge: Joe C. Loser, Jr., Judge
Trial Court Judge: Hon. Janice Holder,
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 consolidated appeal, the employees or claimants, Abbott and Bean, contend the evidence preponderates against the trial judge's finding that they have not suffered a compensable occupational disease. The panel finds the judgment should be affirmed. Bean worked for Firestone for 39 years as a janitor, mold cleaner and production worker. Abbott worked for Firestone for 15 years as a maintenance man. Both were exposed to dust and fumes from chemicals used in the manufacturing of tires and other rubber products. Before the plant closed in 1983, both men began to experience difficulty breathing. Both are, or were during their years of work for the employer, heavy smokers. They developed chronic obstructive pulmonary disease (COPD). The diagnoses were first made in 1989 and 199, by Dr. Richard Wunderink, a physician board certified in both pulmonary and critical care medicine. The doctor also diagnosed Abbott with asbestosis and asbestos related pleural plaques. In his testimony, Dr. Wunderink opined that the exposure at Firestone contributed to and aggravated the COPD and that the asbestosis and asbestos related pleural plaques were directly related to exposure to asbestos. The doctor diagnosed Bean as having asbestosis and asbestos related pleural plaques, in addition to COPD. He also opined that Bean's asbestosis and pleural plaques were "caused by his occupational exposure to asbestos." The COPD was aggravated by exposure to dust at work. Dr. Paul Wheeler, a staff radiologist and chief of the pneumoconiosis section at Johns Hopkins, studied the x-rays of both claimants and opined in his testimony that neither claimant showed evidence of occupational disease related to exposure to asbestos. At the suggestion of Dr. Wheeler, the trial judge ordered CT scans, the results of which were read by separate doctors, one chosen by the claimants and one chosen by the defendants. Both found the claimants lungs to be normal, except that Bean apparently suffered from emphysema. The trial judge found that the evidence failed to establish the elements necessary for an award of workers' compensation benefits for an occupational disease. 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). Where the trial judge has seen and heard the witnesses, especially with issues of credibility, where weight to be given oral testimony are 2
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. A Shelby County jury found the Defendant guilty of burglary. The trial judge found the Defendant to be a career offender and sentenced him to twelve years in the Department of Correction. In this appeal, he argues that the evidence presented at trial was insufficient to support the jury’s finding of guilt beyond a reasonable doubt. We disagree and affirm the judgment of the trial court.
Mary Benson v. The Kroger Company and Cna Insurance Company 02S01-9601-CH-00002
Authoring Judge: Joe C. Loser, Jr., Judge
Trial Court Judge: Hon. Neal Small,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance 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 (1) the award of permanent disability benefits based on one hundred percent to both arms is excessive, (2) it was error to award certain medical expenses, (3) it was error to award discretionary costs, and (4) it was error to award judgment against both defendants. The employee contends by cross appeal (1) the trial court erred in limiting the recovery for permanent partial disability to four hundred weeks, (2) the trial court erred in its award of temporary total disability benefits, (3) the trial court erred in allowing the employer credit for temporary total disability benefits paid, and (4) the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Benson, is 53 years old with a high school education and experience as a meat wrapper in grocery stores. She has no skills or training. She gradually developed bilateral carpal tunnel syndrome while so employed at Kroger. She had carpal tunnel surgery on her left arm in November of 1992 and returned to work at Kroger in January of 1993 as a meat wrapper. She continued to have problems with her hands and became disabled to perform her duties, which included heavy lifting and repetitive use of both hands in a cold environment. Medical benefits were discontinued in July of 1994. She retains a ten percent permanent impairment to her left arm and twenty percent impairment to her right arm, superimposed upon a pre-existing vascular disorder. As a result of the combination of the compensable injury and pre-existing condition, she is medically restricted from repetitive use of the hands, heavy lifting or working in a cold environment. The trial court awarded permanent partial benefits for four hundred weeks, based on one hundred percent permanent disability to both arms, medical expenses of two unauthorizedphysicians and futuremedical benefits. 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). 2
Linda Plunk v. National Health Investors M1999-01596-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Robert L. Jones
This appeal involves a nursing home visitor who injured herself by stepping into a grassy depression in the building's landscaping. The visitor and her husband filed suit in the Circuit Court for Lawrence County alleging that the nursing home's owner had failed to maintain the premises in a reasonably safe condition. A jury apportioned sixty percent of the fault to the nursing home and forty percent to the visitor and awarded the visitor $40,000 for medical expenses and permanent impairment. Both parties filed post-trial motions after the trial court entered a $24,000 judgment for the visitor. The visitor and her husband sought a new trial or an additur because the jury had not awarded damages for pain and suffering. The nursing home filed a Tenn. R. Civ. P. 50.02 motion for a judgment in accordance with its motion for a directed verdict. The trial court denied the nursing home's motion and suggested a $5,000 additur. The nursing home accepted the additur, and both parties appealed. The visitor asserts that the trial court erred by failing to grant a new trial, and the nursing home asserts that the trial court erred by denying its Tenn. R. Civ. P. 50.02 motion. We have determined that the trial court erred by denying the nursing home's Tenn. R. Civ. P. 50.02 motion because it was not reasonably foreseeable that visitors would be walking on the grassy area where the plaintiff fell. Accordingly, we reverse the judgment.
From the decision of the Trial Court dismissing a portion of the original complaint and from the subsequent decision of the Trial Court granting summary judgment for the Defendants as to a second ground of recovery sought, the Plaintiff was granted an interlocutory appeal to this court.
Davidson
Court of Appeals
01C01-9508-CC-00269 01C01-9508-CC-00269
Trial Court Judge: James L. Weatherford
Clint Evard v. Saturn Corporation 01S01-9601-CV-00019
Authoring Judge: Hamilton V. Gayden, Jr., Special Judge
Trial Court Judge: Hon. Jim T. Hamilton
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 claimant contends that the trail court erred by averaging two permanent partial disability rating for two scheduled members. Claimant also contends that the final anatomical impairment award was inadequate. The panel concludes that the methodology utilized by the trial court in arriving at the percentage of permanent partial disability was proper; however, the panel is of the opinion the final award was inadequate. In accordance with T.C.A. 56-225(e), the standard of review in this case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings. It is the claimant's burden to show by a preponderance that the evidence is otherwise. The claimant developed bilateral carpal tunnel syndrome as a result of his work at Saturn where his job involves repetitive grasping of small metal clips which are place on a car door as it passes along the assembly line. When he began installing around 6, clips/ day, his hands began to swell so severely that on one occasion he could not tell that he had cut his hand. Subsequently, he was diagnosed with carpal tunnel syndrome and carpal tunnel release surgery was performed on his right wrist. The claimant filed this workers compensation lawsuit on February 27, l995. At trial in l995, the trial court awarded the claimant a l% permanent partial disability to his right arm and a 5% permanent partial disability to his left arm which at his compensation rate of $382.79 per week amounts to $14,354.3. The percentage disabilities were established by one of the claimant's doctors, Dr. Gaw. The claimant argues that the trial court erred in assessing a percentage of disability to each arm separately under T.C.A. 5-6-27(3)(A)(ii)(m) rather than as one scheduled injury under T.C.A. 2
Maury
Workers Compensation Panel
Mary L. Brents v. Batesville Casket Company, Inc. and Lumbermen's Mutual Company 01S01-9508-CV-00141
Authoring Judge: Jerry L. Smith, Special Judg
Trial Court Judge: Hon. John W . Rollins, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court for hearing andreporting of findings of fact and conclusions of law. See Tenn. Code Ann. _ 5-6- 225(e)(3)(199). Appellant Mary L. Brents presents the following issues for review: (1) whether the trial court erred in finding that attorneys' fees for both accrued and future benefits could not be paid solely from the future benefits award and (2) whether the trial court erred in reducing the amount of her weekly benefit payments by twenty percent, thereby reflecting the advance, lump-sum payment of attorneys' fees. After a review of the record, We affirm the judgment of the trial court. I. FACTUAL BACKGROUND On February 13, 1992, Appellant filed a workers' compensation action against Batesville Casket Company. On March 14, 1994, following a hearing, the trial court found that Appellant was due a fifty-five percent permanent partial disability award for a work-related injury that occurred in October of 1991. The trial court indicated that, had proper notice been given, Appellant would have also been due a fifteen percent permanent partial disability for a work-related injury that occurred in March of 1992. On February 9, 1995, this Court affirmed the judgment of the trial court regarding the October, 1991, injury and reversed the judgment of the trial court regarding the March 1992 injury, modifying Appellant's award to include the additional fifteen percent permanent partial disability. On March 13, 1995, Appellant received three checks pursuant to the decision of this Court. These checks represented (1) payment for all then- accrued and outstandingincome benefits, totaling $16, 211.13, (2) payment for attorneys' fees 2
