Brackins v. Sevier 03S01-9607-CV-00083
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Ben Hooper, Ii,
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 found that plaintiff was 5% permanently partially disabled as a result of his work-related injury by accident. He further found that the workers' compensation carrier was entitled to a credit of $14,43.64, plaintiff's net recovery for his third-party tort settlement. He held that he could not exclude recovery for loss of consortium from plaintiff's net recovery because no specific amount of that recovery was apportioned to loss of consortium. He limited the recovery for medical expenses to plaintiff's out-of-pocket expenses. He granted the plaintiff's attorney a 2% fee from the medical expenses awarded and stated that plaintiff's attorney may have to look to plaintiff's attorney in the third-party action for the rest of his fee. The plaintiff below appeals the trial court's judgment raising the following issues: 1) Whether the evidence preponderates against the trial court's finding that plaintiff retains 5% permanent partial disability to the body as a whole. 2) Whether the trial court erred in allowing the defendant a credit against the portion of the third-party tort recovery which is attributable to plaintiff's spouse's recovery for loss of consortium. 3) Whether the trial court erred by not crediting the full amount of medical expenses against the net recovery because the plaintiff's group hospitalization insurer had not filed a subrogation claim. 4) Whether the trial court should have required the defendant to pay the plaintiff's attorney's fees. We affirm the judgment of the trial court except as to the issue of medical expenses, for which the defendant is liable in full. The plaintiff was injured in a car accident on August 1, 199 while he was traveling in the course of his employment with the Sevier County Board of Education. The plaintiff, who was 53 years of age at the time of trial, continues to work for the 2
Knox
Workers Compensation Panel
Charlotte Freeman v. Cpq Colorchrome, Inc. 03S01-9608-Ch-00089
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: EARL H. HENLEY, Chancellor
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. While lifting a machine at work, plaintiff heard or felt a "pop" in her neck and experienced a slight tingling in her hands. Because she felt little or no pain at that time, she did not immediately suspect that the "pop" and the tingling might be symptomatic of serious injury. When she developed pain in the neck a few days later after sleeping on the arm, she sought medical care and found that she had herniated two cervical disks. The trial court found the plaintiff had proved that her neck injury was caused by her work and awarded her 4 percent permanent partial disability to the body as a whole. The defendant appeals, insisting that plaintiff has not met her burden of proving that her work caused injury. We affirm the judgment of the trial court. Plaintiff, 46 years old with a G.E.D. diploma, began working for defendant's predecessor in 1986. While refinishing photo negatives on February 15, 1994, she lifted a 29-pound machine and felt or heard a "pop" in her neck and a slight tingling in her right arm. She didn't have much, if any, pain, and didn't think much about it. Plaintiff went to the work site within the next three days and, in conversation with her supervisor and two other employees, said that she thought her injury was caused by lifting the machine at work. The supervisor, Kathy Quintard, who was in- and-out of the room during this conversation, thought this was only "chit-chat" among friends. Although she heard plaintiff discuss the injury, she did not consider this to be her official notice of work-related injury, and so Ms. Quintard did not make a report of it. The evidence indicates Ms. Quintard thought that unless plaintiff came to her office and made an "official" statement, she would not be entitled to workers' compensation coverage. On February 17, 1994, plaintiff awoke with arm pain after having slept on the arm. She went to an emergency clinic that day and again on February 2, 1994, 2
Hamblen
Workers Compensation Panel
02A01-9609-CH-00226 02A01-9609-CH-00226
Trial Court Judge: William Michael Maloan
Obion
Court of Appeals
02A01-9604-CV-00073 02A01-9604-CV-00073
Trial Court Judge: James E. Swearengen
Leming vs. State 03C01-9603-CC-00119
Trial Court Judge: Thomas W. Graham
Bledsoe
Court of Criminal Appeals
Smallman v. Shelby 03S01-9607-CV-00079
Authoring Judge: John K. Byers, Senior 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court below awarded plaintiff 17% permanent partial disability to each arm. Plaintiff appeals, arguing that the evidence preponderates in favor of a higher award. We affirm the judgment of the trial court. Plaintiff, who was 44 years of age at the time of the trial, has an eighth- grade education. Her previous work history has been mostly in factory assembly work. She has worked as an upholsterer of furniture for the defendant since 1984. She testified that her work requires her to pad the furniture and then cover it with fabric of some sort, which requires her to constantly pull the fabric and tack it into place with a staple gun. In the spring and summer of 1994, plaintiff began to notice some pain and swelling in her wrists and hands. She reported her problems to her employer in August and her employer referred her to Dr. Wayne L. McLemore, an orthopedic surgeon. Dr. McLemore diagnosed plaintiff with bilateral carpal tunnel syndrome related to her work activities. He attempted conservative treatment but that was unsuccessful. He then performed bilateral carpal tunnel releases with satisfactory results. He assigned plaintiff a four percent permanent impairment to each upper extremity. He testified that he did not impose any restrictions upon the plaintiff because he did not want to make it difficult for her to return to work. However, he opined that she did have some restrictions: she should avoid repetitive pulling and wrist-bending activities, heavy lifting and vibrating tools. After plaintiff returned to work in February 1995, she returned to him on July 25, 1995 with complaints of continued pain and swelling. He testified that he advised her to change her employment if it became a regular problem for her. Plaintiff's attorney referred her to Dr. Gilbert Hyde, also an orthopaedic surgeon, for an independent medical evaluation. He felt that she had continued 2
