01A01-9606-CV-00251 01A01-9606-CV-00251
Trial Court Judge: Hamilton V. Gayden, Jr.
Davidson
Court of Appeals
Clifford J. Kapp v. Transway, Inc. 02S01-9606-CV-00054
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. C. Creed Mcginley,
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 finding that the employee suffered a permanent injury arising out of the employment. As discussed below, the panel has concluded the award of permanent disability benefits should be reversed. The employee or claimant, Kapp, was employed by the employer, Transway, on September 29, 1994 as a truck driver. On that day, the claimant and a co-worker were unloading a tub from a trailer when the co-worker dropped his end, causing the claimant to fall to the floor. He received emergency care at a nearby hospital and was released the same day. Since that time, he has seen numerous doctors. Dr. Michael Smelser, a general practitioner,treated the claimant for pain on three occasions. He performed a neurological examination, which was normal. We find in the record no evidence that Dr. Smelser found any permanent injury or impairment. Dr. Joseph P. Rowland, a neurosurgeon, saw the claimant three or four times. Dr. Rowland conducted a thorough neurological examination and ordered scientific tests, the results of which were normal. Dr. Mark S. Harriman, an orthopedic surgeon, was unable to find any objective evidence of injury. He found no evidence of permanent medical impairment. Dr. Roy Page examined the claimant and found no abnormality. Dr. James H. Owens conducted an extensive examination and found no basis for the claimant's complaint of pain. The only doctor who found any permanent impairment was Dr. Stephen L. Gipson, a pain management doctor. On the basis of complaints of chronic back pain, this doctor assigned a permanent impairment rating of eleven percent to the whole body. All of the medical evidence was by deposition or written reports. The claimant has not returned to work. 2
Janice Bruce v. Tecumseh Products Company 02S01-9604-CV-00042
Authoring Judge: F. Lloyd Tatum, Special Judge
Trial Court Judge: Hon. Creed Mcginley,
This workers' compensation appeal has b een referred to the Special W ork ers ' C om pe ns atio n A pp ea ls Panel of the Supreme Co urt in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep orting of find ings of fa ct an d co nc lusio ns of law . This is an ap pe al by the de fen da nt/e m ploy er, Tec umseh Products Company, from a judgment in fav or o f th e p lain tiff/a pp elle e, Janice Bruce, awarding workers' compensation benefits based on 45% permanent partial disability to the body as a wh ole. The judgment also held the d efen da nt res po nsib le for m edical expenses incurred by plain tiff for the care and treatment provided by Dr. Terry O. Harrison an d D r. Ra y W . He ster, p hys ician s no t sele cted by th e d efe nd an t. The defendant presents three issues for review: 1. Did the trial co urt e rr in find ing th at th e lim itation of two and one-half (2-1/2) times the ana tomical rating set out in T. C .A . S ec tion 5 -6- 24 1(a )(1 ) did no t ap ply to th is cause? 2. Does the ev ide nc e p rep on de rat e a ga in s t the trial co urt's findin g tha t Plain tiff susta ined a forty-five (45% ) percent pe rm an en t pa rtial disa bility to the body as a whole? 3. Did the tria l cou rt err in finding that Tecumseh should be resp on sible fo r the m ed ical ex pe nse s incu rred b y Pla intiff for the care and treatm ent pro vided by D r. Terry O . Ha rrison an d D r. Ra y W . He ster? Be fore ad dre ssin g th e iss ue s, w e will discuss the evidence found in the record. The plain tiff is a lady th irty-one yea rs o f ag e a t th e tim e o f tria l. 2
Henry
Workers Compensation Panel
Janet Carter v. Phoenix Restaurant Group of Tennessee, Inc., et al. 03S01-9602-CH-00013
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Richard E. Ladd
This workers' compensation appeal has been referred to the Special W orkers' 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 was seriously injured in a traffic crash on September 11, 1991. She settled her tort claim and proceeded to trial of this workers' compensation case which resulted in a finding that the `special errand' exception was applicable and that as a result of the accident and injuries she was 6 percent partially, permanently disabled and thus entitled to $183.34 per week during 24 weeks, temporary total benefits during 156 weeks, and medical expenses of $83,245.91. In accordance with TENN. CODE ANN. _5-6-112(c), the defendant was credited with $1,., the amount of the tort settlement, which the plaintiff insists was only partially subrogable. Both parties appeal. The employer insists that because the traffic crash was not job-related, the plaintiff failed to prove her case. The plaintiff insists that because the employer did not recognize the compensability of her claim, and because she was not made whole by the third-party settlement, the full amount thereof should not have been subrogable. The plaintiff further insists that her attorney should have been awarded a fee "out of the third-party settlement fund." She also presents for review the issues of whether a finding of 6 percent permanent partial disability is adequate, and whether certain discretionary costs should have been allowed. I The facts are not in material dispute. The plaintiff, age 31, completed the eighth grade. She had worked in restaurants most of her adult life, and on July 1, 1991 was employed by Wendy's as an assistant manager trainee assigned to work at the North Roan location in Johnson City after a six-week stint in Kingsport. On September 1, 1991, a supervisor came to the North Roan location and announced that on the following day in Kingsport all of the North Roan employees, including the plaintiff, would be given a test which was mandatory. The plaintiff advised her supervisor that September 11 was her day off; the supervisor replied that this did not matter, "that everybody had to be there and would be paid for their time there." 2
Carter
Workers Compensation Panel
Rhonda May v. Great Central Insurance Company 02S01-9606-CV-00060
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Rhonda May,
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's insurer contends the award of permanent partial disability benefits based on forty percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, May, is thirty years old and has a tenth grade education. She has no vocational training. She has worked in garment production and as a cashier and stocker for Save-A-Lot, the employer. On March 3, 1994, she felt a sharp pain in her lower back while lifting a pallet of flour at work. She has seen several doctors and received conservative care. Diagnostic tests revealed a herniated disc in her lower back, superimposed on pre-existing degenerative lumbosacral joint disease. She is overweight and has carpal tunnel syndrome, also pre-existing. One of the doctors assigned her a wholeperson permanent medical impairment rating of ten percent, using appropriate guidelines. The claimant returned to work on September 19, 1994 at the same wage she was receiving before the injury, but was medically restricted from lifting anything weighing more than twenty pounds, from standing more than forty-five minutes to one hour without a five to ten minute break, or from sitting more than forty-five minutes to one hour without a five to ten minute break. She was assigned to the meat department, where her work required her to exceed those limitations. She quit on October 3, 1994. She is presently working as a cashier for another food store, at a lower wage. The trial court awarded permanent partial disability benefits based on forty percent to the body as a whole. 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). For injuries arising after August 1, 1992, in cases where an injured worker is entitled to permanent partial disability benefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage 2
Benton
Workers Compensation Panel
Vickie L. Parks v. Brother Industries, USA, Inc. 02S01-9605-CH-00046
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Neal Small,
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 injured employee or claimant, Parks, contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on fifteen percent to the right arm for her repetitive trauma injury, and in favor of one based on seventy-five percent to the right arm. The panel has concluded that the judgment of the trial court should be affirmed. The claimant is forty-one years old and has a tenth grade education and a General Education Diploma. She gradually developed right carpal tunnel syndrome from repetitive use of her right hand and wrist in a typewriter production line. After being treated or examined by six different doctors, none of whom satisfactorily diagnosed and treated her condition, she saw Dr. James T. Galyon, who surgically repaired her right wrist, returned her to work after a period of recovery, and estimated her permanent impairment at five percent to the right hand and wrist or four percent to the right upper extremity. The claimant returned to work for the employer for a year and a half, but has since quit because of another injury to another member. She later saw Dr. Joseph Boals for an evaluation. Dr. Boals assigned a permanent impairment rating of ten percent to the right upper extremity and restricted her from any work which would require repetitive use of or heavy lifting with the right arm, but otherwise encouraged her to work. The trial court found fifteen percent permanent partial disability to the right arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2). From our independent examination of the record and a consideration of those factors, to the extent they were established by the proof at trial, we do not find the evidence to preponderate against the findings of the trial judge. 2
Shelby
Workers Compensation Panel
Richard D. Roberts v. Goodyear Tire & Rubber Co. 02S01-9607-CV-00066
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. W. Michael Maloan,
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, Goodyear, contends the evidence preponderates against the trial court's findings that (1) the employee or claimant, Roberts, did not knowingly and willfully misrepresent his physical condition in an employment application, (2) the claimant suffered a compensable injury by accident and (3) the claimant retains a twenty percent permanent partial disability of twenty percent to the body as a whole. As discussed below, the panel has concluded the judgment should be affirmed. From 197 until April, 1988, the claimant was employed by another employer, Carborundum, as an electrician. In April, 1988, Carborundum ceased its operations. The out-of-work claimant applied to Goodyear for a job and, in March of 1989, was called to Goodyear regarding available jobs in its production department. After an interview, he was hired subject to a medical evaluation. He completed a medical evaluation form, including the medical history portion, then was examined by a physician, in accordance with the employer's standard practice. The claimant was approved for hiring on March 13, 1989. In completing the personal medical history portion of the medical evaluation form, the claimant checked "no" in response to the question which asked whether he had any "Disorder of the musculo-skeletal system -- back trouble, knee trouble, painful or swollen joints, bone fracture, gout, arthritis, amputations, etc.?" In response to another question, however, he noted a previous broken hip and repair to his urethra during a previous injury at Carborundum, for which he asserted a claim for workers' compensation benefits in 1976. After that injury and surgery, the claimant complained from time to time about low back pain. In the pre-employment physical examination, the physician reviewed the claimant's personal medical history and questioned him regarding the broken hip and urethra repair, but did not ask about any back pain associated with the injury. None was related. The physician then conducted a physical examination of the claimant and approved him for work with no restrictions. The claimant was assigned to the production department. On April 7, 1989, while at work and changing a roll weighing approximately 12 pounds, the claimant injured his back. The injury was diagnosed as a ruptured disc and treated with open surgery. The operating surgeon assigned an eleven percent permanent whole person impairment, from appropriate guidelines. 2
In this divorce action, the trial court awarded Marilyn Green (the “Wife”) a divorce from Carlos Green (the “Husband”) upon the grounds of inappropriate marital conduct. Pursuant to a property settlement agreement, the parties agreed to sell the marital home by auction, pay the remaining indebtedness on the home and divide the proceeds equally. The parties agreed that the Wife would receive a Mercury automobile, a Ford Thunderbird automobile, the furniture, household furnishings and real estate located in the Eaton community. The parties agreed that the Husband would receive the farming equipment, guns, saddles and two pickup trucks. The trial court divided the remainder of the parties’ property and awarded the wife a one-half interest in the Husband’s retirement income and awarded the Husband a one-half interest in the Wife’s retirement income. The court further awarded each party a one-fourth interest in a fifty-seven acre tract of land in the Eaton community and awarded each party a one-sixth interest in twenty acres of corn planted as of the date of the final divorce hearing. The court further ordered that the livestock owned by the parties be sold and the proceeds divided equally. The Husband has appealed the judgment of the trial court arguing that the trial court’s division of property was improper. For the reasons stated hereafter, we reverse the judgment of the trial court as to the Wife’s interest in a fifty-seven acre tract of land in the Eaton community and affirm as to the Wife’s interest in twenty acres of planted corn.
Gibson
Court of Appeals
03C01-9607-CC-00266 03C01-9607-CC-00266
Trial Court Judge: Ben W. Hooper, II
This appeal concerns whether the appellant, Jerry Finchum (“Finchum” or “Father”), should be legally required to pay retroactive child support for his child, Elizabeth Jane Hickerson, born February 16, 1983 to the appellee, Karen Hickerson (“Hickerson” or “Mother”). The juvenile court awarded such support, in the amount of $31,080, and Finchum has appealed. For reasons set forth below, we affirm.
