Geneva Hicks v. Emerson Motor Company 02S01-9602-CH-00022
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George R. Ellis,
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 the evidence preponderates against the findings of the trial court with respect to causation and permanency. The panel finds the preponderance of the evidence to be contrary to the finding of the trial court with respect to causation. The employee or claimant, Geneva Hicks, is 45 with an eleventh grade education. She has worked at a day care center, caring for small children, in a clothing factory and as a fruit packer. She has worked in various jobs for the employer, Emerson, since 198. She has suffered from hoarseness and shortness of breath at work since about 1992, for which she has seen numerous doctors. In the course of her work for Emerson, she was exposed to various fumes. The employer has attempted to accommodate her by transfer to different departments and by the use of fans. She finally commenced this action for workers' compensation benefits for a claimed occupational disease, which she labeled allergic bronchitis. She was referred by her attorney to Dr. A. Clyde Heflin, Jr., who saw her on several occasions and opined in his deposition testimony that she was possibly having asthmatic attacks at work. The doctor was given a list of chemicals and asked and answered as follows: Q. ...(A)t this point in time, do you have an opinion, based upon a reasonable degree of medical certainty, as to what connection this lady's job place has as to her asthmatic condition? A. The list of substances that I've been supplied have numerous items which are -- and maybe we need to regress a second. The workplace environment, as far as causing asthma, you have to understand that asthma we now consider to be this hyper-reactive or irritable state of the lungs; and that is caused or generated by someone or a substance causing what we call an inflammatory condition or direct irritation of the lungs. So there is a long list of substances now known in the workplace that actually can induce asthma; and the classic one of these are TDI's, or diasocyanates, which are used in the plastics industry, for instance. The epoxy resins, which I don't see here specifically listed, but are often used in electrical manufacturing, can cause this as well. 2
Gibson
Workers Compensation Panel
Geneva Hicks v. Emerson Motor Company 02S01-9602-CH-00022
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George R. Ellis,
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 the evidence preponderates against the findings of the trial court with respect to causation and permanency. The panel finds the preponderance of the evidence to be contrary to the finding of the trial court with respect to causation. The employee or claimant, Geneva Hicks, is 45 with an eleventh grade education. She has worked at a day care center, caring for small children, in a clothing factory and as a fruit packer. She has worked in various jobs for the employer, Emerson, since 198. She has suffered from hoarseness and shortness of breath at work since about 1992, for which she has seen numerous doctors. In the course of her work for Emerson, she was exposed to various fumes. The employer has attempted to accommodate her by transfer to different departments and by the use of fans. She finally commenced this action for workers' compensation benefits for a claimed occupational disease, which she labeled allergic bronchitis. She was referred by her attorney to Dr. A. Clyde Heflin, Jr., who saw her on several occasions and opined in his deposition testimony that she was possibly having asthmatic attacks at work. The doctor was given a list of chemicals and asked and answered as follows: Q. ...(A)t this point in time, do you have an opinion, based upon a reasonable degree of medical certainty, as to what connection this lady's job place has as to her asthmatic condition? A. The list of substances that I've been supplied have numerous items which are -- and maybe we need to regress a second. The workplace environment, as far as causing asthma, you have to understand that asthma we now consider to be this hyper-reactive or irritable state of the lungs; and that is caused or generated by someone or a substance causing what we call an inflammatory condition or direct irritation of the lungs. So there is a long list of substances now known in the workplace that actually can induce asthma; and the classic one of these are TDI's, or diasocyanates, which are used in the plastics industry, for instance. The epoxy resins, which I don't see here specifically listed, but are often used in electrical manufacturing, can cause this as well. 2
Gibson
Workers Compensation Panel
Darla Holt v. National Union Fire Ins. Co. 03S01-9601-CV-00003
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. John A. Turnbull,
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 awarded plaintiff 3% permanent partial disability to the body as a whole. Defendant challenges the permanency of the injury and the methodology used by the trial judge to reach his finding. We affirm the judgment of the trial court. Plaintiff, 28, has a GED and has been trained as a certified nursing technician. Most of her work experience has been in this area. She was involved in a car accident in 1988 which eventually led to a total right hip replacement in July 1992 due to avascular necrosis. Plaintiff injured her back lifting a patient on November 7, 1993. Plaintiff was treated by Dr. Boyd D. Matthews, a chiropractor, who testified in this case by deposition. He opined that plaintiff had central disc protrusions at L4- L5 and L5-S1 based upon his examination, plaintiff's complaints and the results of various imaging studies. He assigned plaintiff a permanent impairment rating of 33% to the body as a whole. He arrived at this impairment rating by rating various impairment factors and compiling them under the AMA Guides. Dr. Robert H. Haralson, III, an orthopedic surgeon, examined the plaintiff at the request of the defendant and testified by deposition. He opined that, although plaintiff certainly had a back injury, she did not retain any permanent impairment. He acknowledged that plaintiff had protruding discs at L4 and L5; however, he opined that they did not impinge on plaintiff's nerves and that they pre- existed her back injury, based on his review of CT scans taken before and after the work- related injury. The trial judge discredited the testimony of Dr. Boyd D. Matthews. With Dr. Matthew's testimony discredited, there was no medical testimony upon which to base a medical impairment finding. The trial judge, in his ruling, found, based upon 2
Cumberland
Workers Compensation Panel
Lumbermens Mutual Casualty Insurance Company and Schering-Plough Health Care Products, Inc. v. Willie Gwen Smith 02S01-9511-CV-00110
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. D'Army Bailey,
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiffs filed suit seeking a determination that defendant is not entitled to workers' compensation benefits. They appeal from the trial court's finding that she is entitled to benefits.
Shelby
Workers Compensation Panel
Lumbermens Mutual Casualty Insurance Company and Schering-Plough Health Care Products, Inc. v. Willie Gwen Smith 02S01-9511-CV-00110
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. D'Army Bailey,
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiffs filed suit seeking a determination that defendant is not entitled to workers' compensation benefits. They appeal from the trial court's finding that she is entitled to benefits.
Shelby
Workers Compensation Panel
Neva Jewel Milam v. Hca Health Systems, Inc. d/b/a Centennial Medical Center 01S01-9601-CH-00004
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Robert S. Brandt,
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 employee or claimant contends (1) the award of permanent partial disability benefits is inadequate and (2) the chancellor "erred as a matter of law by deciding, before any evidence had been heard or any witnesses testified, that the on-the-job accident had only a tangential relationship with" her injury. The employer seeks dismissal of the appeal because the claimant did not file a statement of the evidence and was not entitled to a copy of the transcript of the evidence. Because a transcript is part of the record on appeal, the issue raised by the employer must necessarily be considered first. Unlike some other jurisdictions, Tennessee does not provide official court stenographers for civil trials. Instead, it is customary in this state that the parties to civil litigation will engage a stenographer and pay a per diem for stenographic services. Those parties who participate in the per diem may, for an additional fee, order from the stenographer a transcript of the evidence for use on appeal in case of an adverse decision in the trial court. The stenographer does not customarily make the transcript available to a party who did not participate in payment of the per diem. It is a matter of contract among the parties to the litigation and the non-party stenographer; and a party who does not join in the engagement and payment of a stenographer has no contract right to require the stenographer to transcribe the record which is therefore unavailable until made available on terms satisfactory to both the stenographer and the party or parties who engaged the stenographer. See Beef N' Bird of America, Inc. v. Continental Casualty Company, 83 S.W.2d 234 (Tenn. App. 199). Instead, a non-participating party may prepare a narrative statement of the evidence for use on appeal. The procedure for including a statement of the evidence in the record on appeal is provided by Tenn. R. App. P. 24(c). We find no statement of the evidence in the record. In this case, the employer engaged the services of a stenographer - or court reporter - in the trial court and paid the full per diem. The claimant did not participate. When the chancellor issued his decision, however, she was dissatisfied with the outcome and decided to appeal. Instead of preparing a statement of the evidence, she applied to the trial court for an order requiring the employer to make a transcript available to her. The trial court granted the motion. Appellate rules do not require that a party who has assumed the burden of providing a court reporter at trial make available that reporter's work for a party who did not join in providing the reporter; and, in the absence of unusual circumstances, the rules do not permit a party to see how his case comes out before deciding whether to share in the reporter's fees. One who follows that course runs the risk of not having a verbatim record available. See Estate of 2
Insurance Company of North America v. Ronnie Storie 01S01-9602-CV-00037
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Conrad E. Troutman,
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 issue presented by this appeal is whether the evidence preponderates against the trial court's finding that the employee's injury was proximately caused by intoxication. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for an award of benefits. The claimant or employee, Storie, is forty-five years old and has an eighth grade education. On March 18, 1993, he reported to work at 6:3 p.m. at Kentucky Apparel to perform his usual duties as a maintenance mechanic. During the course of the shift, he needed to obtain some copper tubing and light bulbs to perform his duties. Those supplies were stored above a dropped ceiling above the maintenance office and accessible by a ladder and some loose boards. The claimant negotiated the ladder without a problem, but slipped and fell when one of the loose boards moved. He fell through the ceiling and onto a concrete floor in the men's rest room below, frightening a user, who beat a hasty exit and reported the accident. The claimant suffered multiple injuries, including a broken arm and back injury. We find in the record no direct evidence the claimant was intoxicated at the time. In fact, he had apparently performed his duties satisfactorily until the accident occurred. The injurious accident occurred shortly before 2:45 a. m. on March 19th. After some delay, he was driven to the Fentress County Hospital by a co-worker, arriving at about 3: a. m. When no doctor was available to treat his arm injury, he was transported to the Putnam County Hospital. When he arrived there at about 6:3 a. m., he smelled of alcohol and a blood alcohol test revealed an alcohol content of approximately .2 percent. The claimant insists he consumed the alcohol, retrieved from his own vehicle at the plant and provided by a friend while waiting for medical attention, after the accident, to help relieve pain associated with his injuries. The trial court disallowed the claim as being proximately caused by intoxication. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Fentress
Workers Compensation Panel
MC-CH-CV-RE-03-15 MC-CH-CV-RE-03-15
Trial Court Judge: John H. Gasaway, III
Montgomery
Court of Appeals
Pamela D. Millsap-Fann v. Aetna Casualty & Surety Company 03S01-9605-CH-00052
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. G. Richard Johnson
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 job-related accident from which the injury and disability arose occurred April 11, 1992. The case was heard January 12, 1996 resulting in a judgment that the plaintiff had sustained a 6 percent disability to her whole body. The employer appeals and presents for review the issue of whether the award is excessive. Our standard of review is de novo on the record accompanied with a presumption of the correctness of the judgment unless the evidence otherwise preponderates. TENN. R. APP. P. 13(d); T.C.A. _ 5-6-225. The application of this standard requires this Court to weigh in more depth the findings and conclusions of the trial courts in workers' compensation cases. Corcoran v. Foster Auto GMC, 746 S.W.2d 452, 456 (Tenn. 1988). The plaintiff was involved in a traffic accident during the course of her employment as a family counselor. Her most serious injury was a broken hip which required a prosthetic replacement by Dr. Thomas L. Huddleston, an orthopedic surgeon, who testified by deposition that the plaintiff had a 37_ percent permanent partial impairment to her left leg, extrapolated to 15 percent for the whole body. The plaintiff was 42 years old at the time of trial. She has a Master's Degree in her area of discipline. She was employed by the First Tennessee Human Resources Agency in November 199 as a HomeTies specialist and, following her surgery, she returned to work with no prescribed limitations or restrictions. The proof shows a litany of physical activities in which she may engage by way of demonstrating the extent and range of her recovery and present condition, which include but are not limited to driving a car, hiking, backpacking, playing tennis and performing all normal household functions. Her discharge summary was, "Her hip was free of pain . . . . the range of motion of her hip was excellent . . . ." Her immediate supervisor testified that she was able to perform all of her duties, and the
