Mary A. Marshall v. Bc/Bs of Memphis, et al 02S01-9606-CV-00058
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Irma Merrill,
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 employee contends it was error to summarily dismiss her claim as being barred by Tenn. Code Ann. section 5-6-23, a statute of limitation. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for trial of all issues raised by the pleadings. The action was commenced by the filing of a complaint and summons on February 24, 1995 seeking workers' compensation benefits for injuries and disabilities arising out of and in the course of the claimant's employment with the defendant, Blue Cross / Blue Shield of Memphis. In particular, the employee claims that she has become permanently disabled from the repetitive trauma of operating a key punch machine. By their responsive pleading, the defendants deny the existence of the injury and deny that they received timely notice, but do not assert the affirmative defense that the claim is barred by any statute of limitations. The defendants then took the claimant's discovery deposition and interrogated her concerning, among other things, when she first knew her work was causing pain. Her deposition reveals that her pain began in 1992 and was reported to the employer. The employer, however, chose to treat her claim not as one for workers' compensation benefits, but for group health benefits. On January 18, 1996, the defendants served a pre-trial "Motion to Dismiss" the claimant's claim "pursuant to Rule 41.2 of the Tennessee Rules of Civil Procedure" for "failure to file such cause of action within the time prescribed by Section 5-6-23 of the Tennessee Code Annotated." The motion was, according to the trial judge's order of dismissal, "supported by" the claimant's discovery deposition. The trial judge treated the motion as a Tenn. R. Civ. P. 56 motion for summary judgment, found from the deposition that the claimant "was told in 1992 that she was suffering work related injuries to her wrists, shoulders, neck and back by her physicians (sic) statement to her employer so stating and was told by her employer she did not have a workers' compensation claim," and dismissed the claim as being time-barred. By Tenn. R. Civ. P. 56.3, summary judgment will lie if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment is almost never an option in workers' compensation cases; however, when there is no dispute over the evidence establishing thefacts 2
Marshall
Workers Compensation Panel
Doris Tabor v. Crossville Ceramics 03S01-9510-CV-00117
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. John J. Maddux, 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 alleges that on March 7, 1994 she sustained injuries to her arms and hands during the course of her employment owing to their repetitive use; that she returned to work as a polisher for the Crossville Ceramics Company and that on March 23, 1994 she injured her neck or back while pushing a box of tiles. The defendants admitted that the plaintiff suffered a temporary injury but denied that she sustained a permanent disability. Thereafter, on May 24, 1995, an approved Order was entered whereby the plaintiff voluntarily dismissed "her cause of action as to her March 23, 1994 injuries" pursuant to Rule 41, Tenn. R. Civ. P. This procedure is unchallenged, and we will treat the complaint as having been amended to allege a compensable injury by accident which occurred on March 7, 1994. The plaintiff testified that she worked as a sorter in the polishing department of the ceramics manufacturer, the kind of work that required repetitive motions of both arms. On March 7, 1994 numbness and tingling developed in both arms which she reported to her supervisor and for which she received conservative medical treatment. She continued at her job for more than one year, leaving employment in April 1995 after allegedly suffering a neck injury. During the thirteen months between March 1994 and April 1995 the plaintiff was seen by a procession of physicians practicing various disciplines. Dr. Simpson, the orthopedic physician selected by the plaintiff, treated her over a period of months and concluded that she exaggerated her symptoms which were not anatomic. He testified that she suffered no impairment. His findings are supported by those of the Knoxville Neurology Clinic and the East Tennessee Orthopedic Clinic. The plaintiff was referred by her attorney to Dr. Gorman, an orthopedic surgeon practicing in Johnson City, who testified that she had a five (5) percent impairment in each arm, and recommended avoidance of "repetitive factory work." 2
Rebecca Caldwell v. Kelly Services, Inc. and Continental Casualty Company 03S01-9603-CH-00022
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Joe C. Loser, Jr., Judge
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 employer contends the evidence preponderates against an award of permanent partial disability benefits. The panel concludes the award of permanent partial benefits should be reversed. On September 1, 1994, the employee or claimant, Caldwell, an employee of Kelly Services, was sent to work at Moore's Quality Snack Foods. While working there, she slipped and fell, landing on her hand and arm. After receiving emergency care at the emergency room of a hospital, she was referred to Dr. Michael Lady, who diagnosed tenosynovitis and prescribed a splint and rest from work until her bruising and swelling subsided. On October 19, 1994, the claimant, while visiting a relative in Louisiana, saw Dr. Steiner, and orthopedic surgeon. Dr. Steiner eventually released her to return to work without any restrictions or permanent impairment. She did. On December 2, 1994, she left work because her injured arm was hurting. The next day, she revisited Dr. Lady, who prescribed a wrist splint, medication and rest. The doctor continued to treat her conservatively. His testimony by deposition included the following relevant questions and answers: Q. Okay. Now, Dr. Lady, based upon the American Medical Association guidelines, do you have an opinion which is also based upon a reasonable degree of medical certainty as the 2
Ernest O. Wood v. Aluminum Corporation of America 03S01-9601-CV-00007
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. W. Dale Young,
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 in this appeal are whether the employee should have been awarded permanent partial disability benefits and additional temporary total disability benefits. The panel has concluded the judgment should be affirmed. The employee or claimant, Wood, is a high school graduate who has worked for the employer, ALCOA, since approximately 1971. On June 7, 1991, while at work, he fell from the top of a tray of carbons, landing on his right side and injuring his right elbow, shoulder and hip. He continued working for the employer, while being conservatively treated for a torn right rotator cuff, until August 15, 1991. The injury was surgically repaired September of the same year and the employee returned to work for the employer on or about May 8, 1992 with minor restrictions. He was laid off six weeks later and has not worked since July 6, 1992. Because of other illnesses, he is receiving disability retirement benefits. He has received temporary total disability benefits for the time he lost from work before the layoff. He has also received medical benefits as required under the workers' compensation law. The medical proof as to whether the claimant's disability is causally related to his injuries is speculative and equivocal. In separate litigation, he claims to be disabled from asbestos-related lung disease. The trial judge disallowed the claim for disability workers' compensation benefits for insufficient proof that the disability is causally related to the injury at work. 2
This case involves contempt proceedings brought against Wendell Ray Loyd (“Husband”) by Brenda Bailey Loyd (“Ex-Wife”) for failure to pay alimony. The trial court found that Husband did not have the present ability to pay and therefore could not be incarcerated for contempt. We reverse and remand for further proceedings.
