Kay Perryman v. Cosmolab, Inc. 01S01-9703-CH-00069
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Lee Russell,
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 contends the evidence preponderates against the trial court's award of permanent partial disability benefits and temporary total disability benefits. The employee concedes the award of temporary total disability benefits is excessive, but contends the trial court used an incorrect compensation rate. As discussed below, the panel has concluded the award of permanent partial disability benefits should be affirmed and the award of temporary total disability benefits modified. The case is remanded for additional proof as to the correct compensation rate. The employee or claimant, Perryman, is forty years old with a high school education. She has worked for the employer for twenty years. In 1994, she injured her elbow at work. As part of her treatment, she was required to take medication which contained blue and yellow dyes, which were also used in the employer's manufacturing process. She had an allergic reaction to the dyes after taking the medication. As a consequence, she is no longer able to work for the employer. She returned to gainful employment on October 31, 1994, thirteen weeks after the beginning of her inability to work because of the injury and treatment. The proof of permanency consisted of the following from the testimony of Dr. Samuel Rowe Marney, Jr., a board certified specialist in Allergy and Immunology: Q. Dr. Marney, Ms. Perryman now has these allergies. Do you have an opinion based upon a reasonable degree of medical certainty as to whether she will have those in the future? A. Based on the usual course of allergies, she's almost certain to carry these allergies the rest of her life. The trial judge awarded permanent partial disability benefits based on forty percent to the body as a whole and temporary total disability benefits for sixty-five weeks. The compensation rate was fixed at $216.22. 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 2
Perry
Workers Compensation Panel
Walter A. Dickman v. Meadows Homes, Inc. 01S01-9703-CC-00061
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon. J. O. Bond,
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, Meadows Homes, Inc., contends the evidence preponderates against the trial court's finding that the claimant was a covered employee and in favor of a finding that he was an independent contractor. As discussed below, the panel has concluded the claimant was an independent contractor. On June 13, 1994, the claimant, Walter Dickman, and Meadows Homes, Inc., entered into the following: CONTRACTOR AGREEMENT I/We Walter Dickman do state that I/We are general contractors who are duly licensed to perform the services for which we are offering to Meadows Homes. Our services are being offered to the general public. As a contractor, I/We provide our own commercial automobile, workmen compensation and liability insurance,and hereby release Meadows Homes from any and all liabilities concerning our contract and any employees and their properties. As a contractor I/We agree to provide all necessary tools, equipment and transportation necessary to complete any services required. As a general contractor I/We affirm that we are responsible to report and pay any local, state or federal taxes which may be due on income from services rendered. The paper writing was dated and signed by the claimant and a representative of Meadows Homes, Inc. Thereafter, Dickman bid on and was awarded work at property owned by Meadows Homes in Jackson County. Then, beginning on June 27, 1994, the parties agreed that he would be compensated on an hourly rather than a per job basis. He would perform the work, then bill Meadows for his time. 2
Hon. Frank v. Williams, Iii, 01S01-9609-CV-00174
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: JIM T. HAMILTON, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This case was heard on March 15, 1996. The plaintiff alleged that he sustained work injuries on October 29, 1986 (pulmonary injury), January 21, 1986 (carpal tunnel syndrome), and January 6, 1986 (back injury). The trial court found the plaintiff's injuries were compensable and awarded the plaintiff permanent total disability plus medical costs. Prior to July 1, 1985, the level of review on appeal was whether there was any material evidence to support the findings of a trial court. Hilton v. Food Lion, Inc., 738 S.W.2d 626, 627 (Tenn. 1987). After July 1, 1985, the level of review is de novo upon the record with a presumption of the correctness of the trial court's findings of fact unless the preponderance of the evidence is otherwise. Alley v. Consolidated Coal Co., 699 S.W.2d 147, 147-48 (Tenn. 1985). All of the injuries upon which the trial court awarded compensation occurred after July 1, 1985. The standard of review, therefore, is under the preponderance rule set out in the 1985 amendment to the Workers' Compensation Law as elucidated in Alley, supra. The standard of review created by the amendment requires us to conduct an independent examination of the record on appeal to determine where the preponderance of the evidence lies.
Camille Gaines v. American Airlines, Inc. 01S01-9701-CV-00015
Authoring Judge: William S. Russell, Special Judge
Trial Court Judge: Hon. Thomas W. Brothers,
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 contends (1) the trial court erred in calculating the claimant's average weekly wage, (2) the trial court erred in awarding permanent partial disability benefits in excess of two and one-half times her medical impairment rating and (3) the trial court erred in awarding benefits for hypertension. The employee contends (4) the trial court erred in allowing the employer credit for certain temporary total disability benefits and (5) the appeal is frivolous. As discussed below, the panel has concluded the judgment should be modified as to the claimant's average weekly wage, but otherwise affirmed. The employee or claimant, Gaines, worked as a flight attendant for American Eagle, the employer. On September 13, 1993, she injured her back and neck when, as she was performing her duties on a flight from Nashville to Asheville, North Carolina, the aircraft encountered extreme turbulence. She was thrown about in the cabin, causing the injuries. After receiving medical care and a period of recuperation she returned to work but later quit because her residual disability rendered her unable to perform her work without disabling pain. After a trial on the merits, the trial court found the employee's average weekly wage to be $292.76 and awarded permanent partial disability benefits based on forty percent (4%) to the body as a whole and temporary total disability benefits for twenty-six (26) weeks. The trial court allowed the employer a credit in the sum of$3,361.8 for overpaid temporary total disability 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). Conclusions of law are reviewed de novo without any presumption of correctness. Wingert v. Government of Sumner County, 98 S.W.2d 921 (Tenn. 1995). 2
Davidson
Workers Compensation Panel
Goad v. Cna 03S01-9606-CV-00064
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Ben K. Wexler,
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 insists the award of permanent partial disability benefits is excessive; and the claimant or employee insists the award of permanent partial disability benefits is inadequate, the trial court erred in finding part of the claimant's claim to be time barred, the appeal should be dismissed for failure to file part of the transcript, and the appeal is frivolous. As discussed below, the panel has concluded the trial court's judgment that the claim for disability benefits resulting from a 1989 injury is time barred should be affirmed, and that the award of permanent disability benefits from a 1992 injury should be reversed and dismissed. This claim involves two separate injuries to the claimant, both arising out of and in the course of his employment by the same employer. The first injury occurred in November of 1989, when the claimant strained his lower back while lifting a fuel cell. The treating physician diagnosed lumbar disc injury with mechanical nerve compression. He was unable to work for three months. Although the doctor assigned a permanent whole person impairment rating of five percent, the claimant returned to work and received no permanent disability benefits. On April 8, 1992, the claimant injured his neck and low back in a fork lift collision, but was unable to work for only a few days. On June 29, 1992, he saw Dr. Robert J. Wilson, who found no objective evidence of injury, but assigned an impairment rating of three percent, from subjective complaints of pain. On January 5, 1993 and June 25, 1993, he saw Dr. William E. Kennedy, who diagnosed chronic low back and cervical syndrome superimposed on pre-existing degenerative disc disease. Dr. Kennedy assigned a permanent impairment rating of eight percent and restricted the claimant from activities requiring bending, stooping, squatting, heavy lifting, working over 2
Knox
Workers Compensation Panel
Joan Marie Griffin v. National Medical Hospital of Tullahoma 01S01-9606-CH-00130
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. John W. Rollins,
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 is 29 years old, married, and has a young child. She is learning- disabled on account of a stroke when she was only four months old; she was born with congenital heart disease, and developed a pronounced scoliosis at age 12 which required the surgical implantation of rods in her back. Notwithstanding, she has held several jobs: attendant at a day care center, counter clerk at a fast- food eatery, sales clerk and cashier at a J. C. Penney store. She was employed by the defendant in August, 1992 in furtherance of its special employment program called Overcoming Challenges which was established to employ afflicted persons. Her initial job with the defendant was working in the cafeteria making sandwiches and serving food. Some of this work was difficult for her, and ambition lagged; the defendant constantly provided encouragement, and at the time of her alleged injury she had been assigned duties as a cashier. She was often absent from work owing to illness or to the pre-emptive care of her young child. She commonly experienced pain and fatigue as a result of standing or sitting for extended periods, or whenever she lifted objects. Her previous jobs at the day care center, fast food restaurant and the J. C. Penney Store also caused pain and fatigue. The injury from which this complaint arises occurred March 3, 1994 when the plaintiff attempted to lift a milk crate. She was initially treated by Dr. Ramprasad who prescribed physical therapy; thereafter, she was referred to Dr. Paul McCombs, a neurological surgeon. He saw the plaintiff on two occasions, April 25 and May 16, 1994, and on the second visit released her to return to work with the recommendation that she avoid prolonged repetitive twisting, bending and stooping, and that she avoid lifting in excess of 2 pounds at any one time or ten pounds repetitively. The plaintiff returned to Dr. McCombs on June 6, 1994 stating that she had a reoccurrence of pain while lifting her daughter. She returned again on July 25, 1994, 2
