Christopher v. Sockwell 01S01-9703-CH-00067
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Carol Mccoy,
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 employee's injury did not arise out of her employment. The employee contends the award is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Before she began working for the employer, Printing Industry Association of the South, the employee or claimant, Vance, worked as a nurse technician for Baptist Hospital in Nashville until she suffered a back injury for which she received a workers' compensation award based on fifty percent to the body as a whole. She began working for the present employer on May 23, 1995, doing bindery work requiring repetitive use of the hands. On September 1, 1995, while attempting to lift a carton of tapes, she felt a sudden pain in her shoulder and neck, but finished her shift. She sought medical care the next day when the pain worsened and her hands swelled. She was diagnosed with bilateral carpal tunnel syndrome which was surgically treated. The operating surgeon did not testify, but a report from him reflected that he advised the claimant she would never completely recover from the condition. Two examining physicians confirmed the injury was causally connected to the accident of September 1, 1995 at work. One of them assessed her permanent medical impairment at ten percent to both arms. The chancellor found the claimant's injury compensable and awarded permanent partial disability benefits based on twenty-eight percent to both arms. 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). An accidental injury arises out of one's employment when there is apparent to the rational mind, upon a consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993). The evidence fails to preponderate against the chancellor's finding that the claimant's injury was one arising out of her employment with the defendant. Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent 2
Davidson
Workers Compensation Panel
Sharon Abbott v. Saturn Corp. 01S01-9703-CH-00071
Authoring Judge: Joe C. Loser, Jr., Special 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Fairly stated the issue raised by the employee or claimant, Abbott, is that the evidence preponderates against the trial court's finding that her permanent disability is not causally connected to her work- related injury. As discussed below, the panel has concluded the judgment should be reversed. On or about September 1,1993, the claimant,while working for the employer, Saturn, felt a sharp pain in her neck and shoulder while reaching for boxes of parts. She continued to work off and on with pain until November of 1994, when she became disabled to work and was referred by the employer to a Dr. Tom Bartsokas, a family and sports medicine practitioner. The doctor made a preliminary diagnosis of cervical disc disease with myelopathy and myofascial pain syndrome. He excused her from work for one week and ordered a magnetic resonance imaging (MRI) scan. He also prescribed physical therapy. The MRI scan revealed areas of disc bulging in the midline at three levels, particularly C4-C5, C5-C6 and C6-C7 with degenerative disc narrowing from C4 down to C7. In his deposition, Dr. Bartsokas opined the claimant was permanently impaired and gave the following testimony concerning causation: Q. All right. Sir, do you have an opinion, to a reasonable degree of medical certainty, as to what was the cause, then, of this permanent impairment that she has? A. My personal opinion is that, number one, she has cervical disc degeneration. It's a form of disc disease compounded by osteoarthritis, spurring of the spine, and particularly at the level where she had her disc degeneration. And this condition that she was born with the proclivity to manifest was aggravated by the work she performed. In July of 1995, the claimant was referred to Dr. Noel Tulipan, a neurosurgeon, who also found her to be permanently impaired and, by deposition, gave the following testimony: Q. So you said earlier that the patient attributed her condition to her work. My question is to you, do you attribute her condition, the condition that you've described and that you found in her neck, to her work? 2
Maury
Workers Compensation Panel
Jimmy Dayle Shelton, Ii v. The Torrington Co. 01S01-9704-CV-00092
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. The employer contends the evidence preponderates against any award of benefits for a claimed occupational disease because (1) the claim is barred by the applicable statute of limitations, (2) the claimant failed to give timely written notice of his claim, (3) the disease did not arise out and in the course of employment, (4) the claimant is not permanently disabled or, if he is, the award of permanent disability benefits is excessive, and (5) the defendant is not the employer for which the claimant was working at the time of the last injurious exposure. As discussed below, the panel has concluded the judgment should be reversed and the case dismissed. The employee or claimant, Shelton, is thirty-eight years old with a high school diploma, twenty-seven credit hours toward an Associate of Arts degree and a certificate in automotive technology. He worked in the employer's ball bearing manufacturing plant from April 14, 198 until September 28, 199, when he quit because something in the plant made breathing difficult for him. He did not tell anyone at Torrington the reason for his quitting. During his employment at Torrington's ball bearing plant, he held positions in different areas of the plant, including the steel yard, the cast iron department, the screw machine department and the shipping department. He testified that breathing was difficult for him in all those areas. Before becoming employed by Torrington, he worked for other employers and had no breathing problems. In the spring of 1989, there was a fire in the plant. The claimant was exposed to smoke for about five minutes. In the spring of 199, he was briefly exposed to steam from an overheated battery. He first received medical treatment for chest pain and tightness on May 25, 1989 and for shortness of breath on May 22, 199. Two pulmonary specialists, Dr. A. Clyde Heflin and Dr. Alan H. Arrington, testified at the trial by deposition as to the claimant's physical condition. At the time of the trial on October 1, 1996, the claimant was employed by Advance Auto Parts as an assistant manager and had been so employed for almost two years. The trial judge found the claimant first knew he had an occupational disease on September 22, 1993, when Dr. Arrington sent a letter to the claimant's attorney, and that the claimant had a compensable permanent partial disability of thirty-five percent to the body as a whole, which the trial judge commuted to a lump sum judgment of $36,36.2, using the agreed upon compensation rate. 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). 2
Giles
Workers Compensation Panel
James Buttrey v. Insurance Co. of The State of Pennsylvania 01S01-9705-CH-00102
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Irvin Kilcrease,
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 appellant contends the injury did not arise out of and in the course of employment and that the employee failed to give proper notice of his injury. As discussed below, the panel has concluded the judgment should be affirmed. The claimant is forty-five years old and has an eighth grade education. He was employed in the receiving department of Home Depot, responsible for unloading an average of eighteen or nineteen trailers per day. He was so working on Thursday, April 6, 1995, when six or seven doors fell on his left shoulder and neck. He finished his shift and worked through his pain the next day. By Sunday, he could not move his head from side to side and the pain was so severe that he called the assistant manager of the store. The next day, he went to the company doctor, Barrett Rosen. The doctor told him to take off work and so advised the employer through the employee. On June 18th, he told the store's manager he did not want to file for workers' compensation benefits unless he had to, even though the manager knew he was claiming an injury at work. On the same day, the employee visited Dr. Everett Howell, a neurosurgeon, on the referral of Dr. Rosen. Dr. Howell diagnosed a ruptured cervical disc and testified the injury could have been caused by the accident of April 6th, when the doors fell on the claimant. We find in the record no evidence of another possible cause. The trial judge found the injury to have been one arising out of and in the course of employment and that the claimant had a reasonable excuse for his failure to give the required written notice. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). An injury arises out of and in the course of one's employment when there is apparent to the rational mind, upon a consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, and occurs in the course of one's employment if it occurs while an employee is performing a duty he was employed to do. Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993). In a workers' compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident "could be" the cause of a claimant's injury, when, from other evidence, it may reasonably be inferred that the incident was in fact the cause of the injury. McCaleb v. Saturn Corp., 91 2
State v. Miller 03C01-9502-CR-00037
Trial Court Judge: D. Kelly Thomas, Jr.
Blount
Court of Criminal Appeals
Andrea Nichols v. Square D Company 01S01-9611-CH-00226
Authoring Judge: Robe R T S. Br Andt , Senior Judge
Trial Court Judge: Hon. Jim T. Hamilton,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for 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 sole issue on appeal is whether the trial court's award of 65% permanent partial disability to the p laintiff's left ha nd is exces sive. The p anel conc ludes that it is and reduces it to 5%. While working in an assembly line job in August 1994,, the plaintiff developed a repetitive motion injury to her left hand. She is right handed. The initial conservative medic al treatm ent con sisted of restrictin g the rep etitive us e of the plaintiff 's left ha nd. She tried on e job, but said she could n't do it, then w as given a jo b she cou ld perform with only one hand. She said s he couldn't do that, either. The employer informed the plaintiff that no more jobs were available for her that day, but mad e an appo intment fo r her to see an orthoped ic surgeon . The first av ailable appointm ent was f airly far in the futu re, so the em ployer told the p laintiff that it w ould attempt to accommodate her restriction until the appointment. The plaintiff responded by quitting her job . She ne ver retu rned to work for the e mployer . And s he has n ot soug ht any oth er emp loyment. Dr. Howard Miller performed outpatient surgery on the plaintiff in January 1995 and released her to light duty work shortly thereafter. He released her to return to her former job at the end of February. The doctor reported in June 1995 that the plaintiff had full motion in her wrist a nd digits and that she w as largely asympto matic. Dr. M iller did not give the plaintiff any permanent restrictions and did not give her any permanent impairm ent. The plaintiff's attorney sent her to see another doctor, Earl Jeffres, in September 1995. He assessed a 22% permanent partial impairment to the plaintiff's left hand. He acknowledged that the plaintiff's complaints of pain exceeded his objective findings. The plaintiff's complaints of pain in her left hand and the probability that she should av oid repetitive u se of it does limit her emp loyability. But she is ce rtainly employable. She completed two years of business school and worked as assistant mana ger at a r estaura nt for a n umbe r of years . Given the treating physician's finding of no permanent impairment, the other physician's finding of 22% impairment to the non -dominant hand , and the plaintiff's acknowledged refusal to even attempt to find any other work, the panel concludes that the award of 65% to the left hand is excessive and reduces it to 5%. Costs are taxed to the - 2 -
Plaintiffs’ complaint against defendants, Clayborn Ball Temple AME Church and Reverend E. Albert Brown, Jr., is titled “Complaint for Breach of Contract for Sale of Real and Personal Property.” The complaint alleges that defendant Brown acting as the agent and with authority from defendant church entered into a contract with plaintiff providing for conveyance of real property and certain personal property to the church. Prior to the consummation of the transaction, Reverend Brown, for the church, assumed the duties of managing the property and collecting rent, but failed to abide by the contract and pay the mortgage indebtedness and taxes due on the properties. The contract was breached by default in the payment of the mortgage obligations and taxes and further that payment was not made for the property as required by the contract. The complaint avers that as a result of the defendants’ actions, the property was foreclosed, and plaintiffs were liable for deficiencies and other expenses that should have been paid by defendants.
