Gerald Dewayne Sharp v. Sharp Transport, Inc. 01S01-9802-CH-00030
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Robert L. Jones,
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. Fairly stated, the issue is whether the employee's increased permanent medical impairment was causally related to an injury occurring in October, 1994. As discussed below, the panel has concluded the judgment should be affirmed. The action was initiated by the employee or claimant, Gerald DeWayne Sharp, to recover workers' compensation benefits for an injury alleged to have occurred on October 19, 1994. After a trial on the merits on January 16, 1998, the trial judge found that the claimant had "failed to establish by a preponderance of the evidence that the October, 1994, on-the-job incident bore any causal relationship to the back surgery performed on the plaintiff in June, 1995" and "that the preponderance of the evidence establishes that the plaintiff's back condition, including the June, 1995 surgery, are all the result of a prior back injury occurring in 199, and are not the result of the on-the-job incident of October, 1994." Accordingly, the claim was disallowed. 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). In April of 199, while working for a different employer, the claimant fell from a loading dock and injured his back. Corrective disc surgery was performed by Doctor Wilburn, who continued to follow the progress of his recovery. The pain from the injury persisted and, in January of 1991, the pain became sharper and radiated into the lower right leg. X-rays in June of the same year revealed narrowing and degenerative changes at the surgical site. Dr. Wilburn diagnosed post laminectomy syndrome with nerve root irritation and in December, 1991, the doctor assigned an impairment rating of fifteen percent to the body from the injury and consequent surgery. On December 2, 1991, he was awarded permanent partial disability benefits based on thirty-two percent to the body as a whole and lifetime medical benefits. In October of 1992, the claimant began working for the present employer, Sharp Transport, Inc. Sixteen months later, he advised Dr. Wilburn that he had experienced intermittent symptoms since the 199 surgery and fairly constant low backache as well as sharp pain in the right hip and cramping in the right calf. Dr. Wilburn advised him not to drive a truck. In September of 1994, the claimant related to the doctor increasing pain over the past couple of weeks in his low back and hip, as well as behind his right knee and into his right calf. Medical treatment was provided by the previous employer's insurer. An MRI revealed arthritis in the area of the earlier surgery and broad based disc protrusion. Dr. Wilburn attributed the changes to the 199 surgery and noted the claimant may have aggravated his back on October 19, 1994, but that he did not have a new injury. In June of 1995, additional surgery was performed to relieve recurrent pain from the earlier injury. Again the former employer's insurer paid the medical expenses upon receipt of the surgeon's 2
Wayne
Workers Compensation Panel
Valerie Parham v. Conwood Company, L.P. 01S01-9804-CV-00069
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. James E. Walton,
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 employee or claimant, Parham, argues that the evidence preponderates against the trial court's finding that she did not suffer a compensable permanent injury. The employee initiated this action for benefits for claimed carpal tunnel syndrome. After a trial on the merits, the trial judge dismissed the claim upon a finding that she did not suffer a compensable injury. 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); Henson v. City of Lawrenceburg, 851 S.W.2d 89 (Tenn. 1993). The claimant's duties at Conwood included monitoring a small conveyor carrying loose tobacco used in producing chewing tobacco and removing stems and foreign material from loose tobacco. Although the work does involve continuously watching the material pass by on the conveyor, it does not involve continuous or repetitive use of the hands. The majority of the stems are removed in an earlier process. The claimant has seen a number of physicians. Dr. Douglas Weikert treated her for complaints of pain in both hands, but opined she did not have carpal tunnel syndrome or any permanent medical impairment. The doctor was equivocal as to whether her pain was causally connected to her employment. Dr. Stephen Pratt diagnosed mild tendonitis but prescribed no restrictions and found no permanent medical impairment. She saw two or three other approved physicians, who did not testify. The claimant also saw three nonapproved physicians. One of them performed carpal tunnel release surgery. Another, Dr. Richard Fishbein, who evaluated but did not treat her, testified he would not have recommended the surgery. Dr. Fishbein, being under the impression that the claimant engaged in repetitive use of her hands at work, opined her injury was work related, as did the operating surgeon,Dr. McCluskey, whose testimony was, at best, equivocal. The trial judge, after evaluating the credibility of the claimant and studying the conflicting medical evidence, found the medical testimony of Drs. Weikert and Pratt to be more reliable. The trial judge, as the trier of fact in workers' compensation cases, has the discretion to determine which expert testimony to accept or reject. Moreover where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's actual findings. Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997). The party claiming the benefits of the Act has the burden of proof to establish his claim by a preponderance of all the evidence. An award may not be based on conjecture; it must be based on material evidence and the rules of 2
Robertson
Workers Compensation Panel
Kenneth Paxton v. Floyd and Floyd, Inc. and Liberty Mutual Ins. Co. 01S01-9710-CV-00230
Authoring Judge: Joe C. Loser, 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. Fairly stated, the issues on appeal are (1) whether the employee or claimant, Paxton, gave or was excused from giving timely notice of his injury, (2) whether the employee suffered a compensable injury by accident, and (3) whether the trial judge erred in ruling on the admissibility of a doctor's report. As discussed below, the panel has concluded the judgment should be affirmed. The employee initiated this action for workers' compensation benefits resulting from an alleged back injury allegedly occurring on April 29, 1996. After a trial on the merits, the trial judge found that the employee's notice to the employer was not timely and that the employee did not suffer an injury by accident on April 29, 1996, as claimed. The trial judge expressly found the employee's testimony to be unworthy of belief. The claim was dismissed. 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). In October of 1995, while working for another employer, the claimant injured his back lifting a cross tie. He received medical care and returned to work for the same employer. He began working for this employer, Floyd and Floyd, on December 7, 1995, and worked thirteen days between that date and April 7, 1996, when he began working full time and worked until May 26, 1996, when his employment was terminated. On July 11, 1996, his attorney sent a letter to Floyd and Floyd, advising the employer that the employee was making a claim "as a result of a work related accident which occurred on or about 1-16-95." That letter was, as the trial judge found, the first notice to the employer, but the employee had complained to co-workers of back pain. The notice was also sent to the former employer, BEC/Allwaste. On July 31, 1996, his back condition was surgically repaired. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. section 5-6-21; McCaleb v Saturn Corp., 91 S.W.2d 412 (Tenn. 1995). For an occupational disease, except asbestos-related disease or coal worker's pneumoconiosis, benefits are not recoverable from the date of the accident to the giving of such notice and no benefits are recoverable unless such written notice is given within thirty days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. Tenn. Code Ann. section 5-6-21. The written notice must state in plain and simple language the name and address of the employee, the time, place, nature and cause of the accident and must be signed by the claimant or someone acting in his behalf. Tenn. Code Ann. section 5-6-22. The only notice given in this case was defective in that it was not timely and did 2
State vs. Steve Paige W2001-03045-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: James C. Beasley, Jr.
In an indictment returned by the Shelby County Grand Jury on August 9, 2001, Defendant, Steve Paige, was charged with two counts of aggravated assault. The indictment alleged that both offenses occurred on January 16, 1999. At a hearing on December 6, 2001, the criminal court, sua sponte, dismissed the indictment because of the State's failure to prosecute. In its order of dismissal, the criminal court found that Defendant was arrested on January 16, 1999, the case was bound over to the grand jury on May 25, 1999, but he was not indicted until twenty-seven months later. The trial court further found that Defendant was arraigned on November 13, 2001, but the State did not have a file on the case and it had to be continued twice for that reason. When the case was called on December 6, 2001, the State could still not produce a file on the case. Accordingly, the trial court dismissed the case with prejudice for the State's failure to prosecute pursuant to Rule 48(b) of the Tennessee Rules of Criminal Procedure. The State appealed. After review, we affirm the trial court's order dismissing the case, but reverse that portion of the order dismissing the case with prejudice, and remand this case for the trial court to enter an amended order dismissing the case without prejudice.
Shelby
Court of Criminal Appeals
Reba Rector v. Dacco 01S01-9804-CV-00083
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. John Maddux,
Intervenors D. K. Hailey WreckingCompany (Hailey Wrecking) and Levy Industrial Contractors, Inc. (Levy Industrial) appeal an order of the trial court requiring them to pay the attorney fees of Plaintiff Sara Evelyn Evans incurred in a proceeding to enforce a judgment obtained by Ms. Evans against Bobby Hugh Young. For the reasons stated below, we affirm the ruling of the trial court.
Davidson
Court of Appeals
Palmer vs. So. Central Correctional Facility Disciplinary Bd. M1999-01611-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
Petitioner, an incarcerated prisoner at South Central Correctional Facility, appeals the dismissal by the trial court of his petition for a writ of certiorari to review a disciplinary decision made by the Correctional Facility Disciplinary Board and approved by the Tennessee Department of Correction ("T.D.O.C."). The defendant filed a Rule 12.02(6), Tenn. R. Civ. P., motion asserting the failure of Petitioner to state a claim for which relief may be granted. The trial court sustained this motion to dismiss. We reverse.
