Vickie L. Parks v. Brother Industries, USA, Inc. 02S01-9605-CH-00046
Authoring Judge: Joe C. Loser, Jr., Special 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 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 injured employee or claimant, Parks, contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on fifteen percent to the right arm for her repetitive trauma injury, and in favor of one based on seventy-five percent to the right arm. The panel has concluded that the judgment of the trial court should be affirmed. The claimant is forty-one years old and has a tenth grade education and a General Education Diploma. She gradually developed right carpal tunnel syndrome from repetitive use of her right hand and wrist in a typewriter production line. After being treated or examined by six different doctors, none of whom satisfactorily diagnosed and treated her condition, she saw Dr. James T. Galyon, who surgically repaired her right wrist, returned her to work after a period of recovery, and estimated her permanent impairment at five percent to the right hand and wrist or four percent to the right upper extremity. The claimant returned to work for the employer for a year and a half, but has since quit because of another injury to another member. She later saw Dr. Joseph Boals for an evaluation. Dr. Boals assigned a permanent impairment rating of ten percent to the right upper extremity and restricted her from any work which would require repetitive use of or heavy lifting with the right arm, but otherwise encouraged her to work. The trial court found fifteen percent permanent partial disability to the right arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2). From our independent examination of the record and a consideration of those factors, to the extent they were established by the proof at trial, we do not find the evidence to preponderate against the findings of the trial judge. 2
Shelby
Workers Compensation Panel
Janet Carter v. Phoenix Restaurant Group of Tennessee, Inc., et al. 03S01-9602-CH-00013
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Richard E. Ladd
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 was seriously injured in a traffic crash on September 11, 1991. She settled her tort claim and proceeded to trial of this workers' compensation case which resulted in a finding that the `special errand' exception was applicable and that as a result of the accident and injuries she was 6 percent partially, permanently disabled and thus entitled to $183.34 per week during 24 weeks, temporary total benefits during 156 weeks, and medical expenses of $83,245.91. In accordance with TENN. CODE ANN. _5-6-112(c), the defendant was credited with $1,., the amount of the tort settlement, which the plaintiff insists was only partially subrogable. Both parties appeal. The employer insists that because the traffic crash was not job-related, the plaintiff failed to prove her case. The plaintiff insists that because the employer did not recognize the compensability of her claim, and because she was not made whole by the third-party settlement, the full amount thereof should not have been subrogable. The plaintiff further insists that her attorney should have been awarded a fee "out of the third-party settlement fund." She also presents for review the issues of whether a finding of 6 percent permanent partial disability is adequate, and whether certain discretionary costs should have been allowed. I The facts are not in material dispute. The plaintiff, age 31, completed the eighth grade. She had worked in restaurants most of her adult life, and on July 1, 1991 was employed by Wendy's as an assistant manager trainee assigned to work at the North Roan location in Johnson City after a six-week stint in Kingsport. On September 1, 1991, a supervisor came to the North Roan location and announced that on the following day in Kingsport all of the North Roan employees, including the plaintiff, would be given a test which was mandatory. The plaintiff advised her supervisor that September 11 was her day off; the supervisor replied that this did not matter, "that everybody had to be there and would be paid for their time there." 2
Carter
Workers Compensation Panel
Janice Bruce v. Tecumseh Products Company 02S01-9604-CV-00042
Authoring Judge: F. Lloyd Tatum, Special Judge
Trial Court Judge: Hon. Creed Mcginley,
This workers' compensation appeal has b een referred to the Special W ork ers ' C om pe ns atio n A pp ea ls Panel of the Supreme Co urt in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep orting of find ings of fa ct an d co nc lusio ns of law . This is an ap pe al by the de fen da nt/e m ploy er, Tec umseh Products Company, from a judgment in fav or o f th e p lain tiff/a pp elle e, Janice Bruce, awarding workers' compensation benefits based on 45% permanent partial disability to the body as a wh ole. The judgment also held the d efen da nt res po nsib le for m edical expenses incurred by plain tiff for the care and treatment provided by Dr. Terry O. Harrison an d D r. Ra y W . He ster, p hys ician s no t sele cted by th e d efe nd an t. The defendant presents three issues for review: 1. Did the trial co urt e rr in find ing th at th e lim itation of two and one-half (2-1/2) times the ana tomical rating set out in T. C .A . S ec tion 5 -6- 24 1(a )(1 ) did no t ap ply to th is cause? 2. Does the ev ide nc e p rep on de rat e a ga in s t the trial co urt's findin g tha t Plain tiff susta ined a forty-five (45% ) percent pe rm an en t pa rtial disa bility to the body as a whole? 3. Did the tria l cou rt err in finding that Tecumseh should be resp on sible fo r the m ed ical ex pe nse s incu rred b y Pla intiff for the care and treatm ent pro vided by D r. Terry O . Ha rrison an d D r. Ra y W . He ster? Be fore ad dre ssin g th e iss ue s, w e will discuss the evidence found in the record. The plain tiff is a lady th irty-one yea rs o f ag e a t th e tim e o f tria l. 2
In this divorce action, the trial court awarded Marilyn Green (the “Wife”) a divorce from Carlos Green (the “Husband”) upon the grounds of inappropriate marital conduct. Pursuant to a property settlement agreement, the parties agreed to sell the marital home by auction, pay the remaining indebtedness on the home and divide the proceeds equally. The parties agreed that the Wife would receive a Mercury automobile, a Ford Thunderbird automobile, the furniture, household furnishings and real estate located in the Eaton community. The parties agreed that the Husband would receive the farming equipment, guns, saddles and two pickup trucks. The trial court divided the remainder of the parties’ property and awarded the wife a one-half interest in the Husband’s retirement income and awarded the Husband a one-half interest in the Wife’s retirement income. The court further awarded each party a one-fourth interest in a fifty-seven acre tract of land in the Eaton community and awarded each party a one-sixth interest in twenty acres of corn planted as of the date of the final divorce hearing. The court further ordered that the livestock owned by the parties be sold and the proceeds divided equally. The Husband has appealed the judgment of the trial court arguing that the trial court’s division of property was improper. For the reasons stated hereafter, we reverse the judgment of the trial court as to the Wife’s interest in a fifty-seven acre tract of land in the Eaton community and affirm as to the Wife’s interest in twenty acres of planted corn.
This appeal concerns whether the appellant, Jerry Finchum (“Finchum” or “Father”), should be legally required to pay retroactive child support for his child, Elizabeth Jane Hickerson, born February 16, 1983 to the appellee, Karen Hickerson (“Hickerson” or “Mother”). The juvenile court awarded such support, in the amount of $31,080, and Finchum has appealed. For reasons set forth below, we affirm.
Lisa Whited v. Tn. Woolen Mills, Inc., et al. 01S01-9605-CH-00088
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. C. K. Smith
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 injured her right arm, shoulder and neck while working on an assembly line at defendant's woolen mill. The trial court awarded her 5 percent permanent vocational disability. We affirm the judgment of the trial court. At the time of trial, plaintiff was 27 years old with a high school education and a variety of work experience, including fast food clerk, grocery store clerk, newspaper deliverer, tobacco stripper, and factory worker. All of these jobs have required steady use of her hands and arms. On August 1, 1994, plaintiff was sitting in a chair at her sewing work station when she found that a blanket she was working on was hung on a cart. As she pulled the blanket, it snagged. She pulled firmly and when the blanket came loose, she "snapped back in her chair," and felt pain in her right arm, shoulder and neck. She was referred by defendant to Dr. Johnson, who gave her physical therapy and medication and, after having no success, referred her to another company- approved physician, Dr. Roy Clarence Terry, an orthopedic surgeon. Dr. Terry testified by deposition that he performed an arthroscopy and removed the ends of two bones in plaintiff's shoulder which were impinging on each other. Although plaintiff improved after surgery, she remained unable to fully raise her right arm, to lift things above her head, or to move her arm in all directions. She has continued to have severe pain in the arm. Dr. Terry discovered that she also had a symptomatic disc herniation in her neck, caused by the same accident. He assessed nine percent permanent partial disability to the body as a whole. She was totally unable to work when he last saw her, in June 1995, but he expected that with time she would be able to work with limitations. Defendant asked Dr. Leon Ensalada, a medical doctor who is board-certified 2
White
Workers Compensation Panel
Larry R. Williams v. Scott Bolt & Screw Co., et al. 01S01-9604-CH-00077
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. Ellen Hobbs Lyle,
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 of findings of fact and conclusions of law. The plaintiff filed suit alleging that a brown recluse spider bit him while he was at work on April 15, 1993. The trial court denied his claim. Because the evidence does not support the plaintiff's claim, the trial court decision is affirmed. The plaintiff testified that his left leg started itching at work at about 2: p.m. on April 15 or maybe April 19, he is not sure which. At any rate, in his deposition the plaintiff testified that the next thing he noticed was a sore knee the following morning, but he did not pay much attention to it. He testified differently at trial. The plaintiff and his live-in girlfriend both testified they saw a red mark on his knee when he undressed after work the afternoon the itching stared. In any event, the pain started the next morning. The plaintiff went to work and worked almost all day. The pain got bad toward quitting time, and the employer encouraged the plaintiff to see a doctor. He did, and eventually came under the care of two Vanderbilt doctors, Phillip Wolinsky, an orthopedic surgeon, and Bruce Shack, a plastic surgeon. Neither of them know whether a brown recluse spider bite caused the plaintiff's wound. But it was serious whatever caused it, and the plaintiff suffers permanent impairment as a result of it. The doctors' testimony contradicts the plaintiff's claim that a brown recluse spider bit him at work. Dr. Wolinsky does not know much about brown recluse spider bites, and what little he does know and shared in his deposition does not support the plaintiff's claim. According to Wolinsky, the literature referred to by the plaintiff's counsel indicates that while a bite may not cause any immediate pain, some localized pain develops within an hour or so. -2-
Davidson
Workers Compensation Panel
Randy Wilson v. Eaton Corporation 01S01-9605-CH-00107
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Tyrus H. Cobb,
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 judge awarded the plaintiff 5% permanent partial disability to the right hand. He refused to award temporary total disability benefits because plaintiff had lost no wages during his period of temporary total disability. Appellant challenges the trial court's findings that plaintiff sustained a work- related injury by accident to his right thumb in August 1992, that plaintiff gave notice of such an injury and that this claim is not barred by the statute of limitations. Appellee challenges the trial court's refusal to award temporary total disability benefits. Appellee also argues that the appellant should be estopped from pleading the affirmative defenses relied upon for failure to show proper and timely filing of the required notice of controversy. We affirm the trial court's judgment. Plaintiff, 4 at the time of trial, has his high school diploma. He has worked primarily in factories; he also worked as a patrolman for two-and-a-half years. He has worked for the appellant since 1984. He now works as a gear lab technician, which requires lifting and grasping of parts ranging from 3 to 4 pounds apiece. In August 1992 he developed a knot on the outside of his thumb and began having stiffness and pain in his thumb and difficulty grasping objects. A few weeks later, a part overturned in his hand and "snapped [his] thumb out." Plaintiff testified that he reported his injury the next day, August 21, 1992, to the plant nurse. She asked him if he had ever hurt his thumb before, and he told her the only time he had ever hurt it before would have been in 1988 when he had fallen. He testified that the nurse told him that she thought his problem with his thumb had something to do with his 1988 fall. In the 1988 fall, plaintiff hit his left hand against a railing and strained three of his fingers on his left hand; he also jammed the thumb on his right hand, but there is no record of a complaint about the 2
Wilson
Workers Compensation Panel
Premier Manufacturing, et al. v. Patricia Cothran 01S01-9605-CV-00102
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. William B. Cain,
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 of findings of fact and conclusions of law. The trial court found that the plaintiff failed to carry her burden of proving that she sustained a permanent disabling injury, a finding based upon assessing the credibility of the witnesses. Given the considerable deference we must give to the trial court's credibility determinations, McCaleb v. Saturn Corp., 91 S.W.2d 412 (Tenn. 1995) and the presumption of correctness of the trial court's findings, Tenn. Code Ann. _ 5-6-225(e)(2), we affirm the trial court's decision. The plaintiff worked for Premier Manufacturing Support Services, Inc., a contractor at the Spring Hill Saturn automobile assembly plant. The company performed a variety of services for Saturn, including cleaning the interiors of buildings and maintaining the grounds. The plaintiff worked at several inside and outside jobs before she sought and received a job driving cars off the assembly line. On January 14, 1994, the car the plaintiff was driving backed into a light pole. She was taken to a Columbia hospital where she was treated and released. The company sent the plaintiff to Dr. Larry Laughlin, an orthopedic surgeon, who diagnosed her as having back and neck strain. He referred her to Pinnacle Rehabilitation for physical therapy. On the plaintiff's second visit to Laughlin, he conducted a test that indicated that the plaintiff was magnifying her symptoms. The finding of a MRI was normal. Pinnacle conducted a symptom magnification test on the plaintiff, and she scored a four out of five, which means positive for symptom magnification. Laughlin testified that he could not find any significant problems with the plaintiff and he found no permanent impairment. He placed no physical restrictions on her work. -2-
