01C01-9505-CC-00143 01C01-9505-CC-00143
Trial Court Judge: Leon C. Burns, Jr.
Putnam
Court of Criminal Appeals
Ronald H. Anselm v. K-Va-T Food Stores, Inc., Fireman's Fund Insurance Company and Sue Ann Head, Director, Division of Workers' Compensation, Tennessee 03S01-9508-CV-00087
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. W. Dale Young
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 alleged that he sustained an injury to his neck, arms and shoulders during the course of his employment by the K-VA-T Food Stores while performing repetitive actions involving the stocking of food shelves from April 1 to May 19, 1992. He further alleged that these repetitive actions aggravated a prior neck injury. The defendant denied the occurrence of an accidental injury. The plaintiff began working for K-VA-T as a cashier in September, 199. He was 5 years old, and had earned his livelihood driving a truck for most of his adult life. In l987 he was treated for shoulder pain for which, in December 1987, he settled a workers' compensation claim. He suf fered recurring pain in 199 while driving a truck and sought workers' compensation benefits which were awarded in December, 1992. The purported repetitive actions entailed by his most recent job occurred, as heretofore stated, during a six-weeks period in April and May, 1992. The trial judge found that the injuries complained of did not occur during the plaintiff's employment by K-VA-T, and dismissed the complaint. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial judge are correct unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Dr. Stephen Wiessfeld was the only medical expert called to testify. He said that based on the history related to him, the plaintiff sustained an aggravation to a pre- existing arthritic condition, but conceded that his opinion was dependent upon an accurate history of repetitive arm and shoulder movements. He found no anatomical changes, but relied upon the representations of his patient. Further evidence revealed that the claimed repetitive actions were not as onerous as claimed, which impelled the trial judge to find that the medical testimony was untrustworthy, and unreliable. The burden to establish each element of a workers' compensation claim is upon the employee claiming benefits. Oster v. Yates, 845 S.W.2d 815 (Tenn. 1992). One
Knox
Workers Compensation Panel
Beecher Kent Bilbrey v. Roadway Express, Inc. 01S01-9511-CH-00215
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Vernon Neal
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. Plaintiff, Beecher Kent Bilbrey, has appealed from the action of the trial court in dismissing his claim for benefits because he failed to render proper notice of the claim to defendant, Roadway Express, Inc. The Chancellor made alternative findings regarding all other aspects of the claim in the event it was determined the notice requirement had been complied with or reasonably excused. Plaintiff is 5 years of age and has a 9th grade education. He was employed as a driver for defendant trucking company. On about June 2, 1993, while at a trucking terminal in Huntsville, Alabama, he testified he injured his back when hooking a set of double trailers. He said he called his dispatcher and told him he had pulled his back but didn't think it was going to be any problem. He told the trial court that upon returning to the Nashville terminal, Robert Anderson, a supervisor, asked him if he had been drinking and would he consent to take a blood alcohol test. He denied having drank anything and consented to take the test. He said he told Anderson he did not want to wait a long period of time to be given the test but left after waiting about 15 minutes. He returned to Cookeville where he went to the hospital emergency room. The record indicates that he returned to the emergency room on about June 3th and saw several doctors during June and July, 1993, concerning his physical condition. Plaintiff testified that shortly after the incident on June 2th he also called Roger Morrison, a relay manager, and told him he had hurt his back, had been to the hospital and wanted to go on sick leave. He said Morrison told him he was terminated for leaving the job. When asked if he had told how he hurt his back, he replied, "No. I didn't like his attitude. He made me mad." Plaintiff testified he knew it was a violation of company policy to leave without taking the blood test after he had agreed to do so. He also acknowledged that he was aware that he would be terminated for this reason. 2
Putnam
Workers Compensation Panel
Beecher Kent Bilbrey v. Roadway Express, Inc. 01S01-9511-CH-00215
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Vernon Neal,
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference...
Putnam
Workers Compensation Panel
Betty Jo Cleghorn v. Suburban Home Health, Inc. 01S01-9510-CH-00178
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Claudia C. Bonnyman
This workers' compensation appeal has been referred to the Special 1 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 held that the plaintiff had not met her burden of proving that she sustained a permanent vocational disability as a result of her work-related injury. Plaintiff appeals, asserting that the evidence does not support the trial court's judgment. We affirm the judgment of the trial court. No transcript of the evidence was filed. The evidence available for our review consists of the medical depositions offered in the trial court and their attendant exhibits. The medical evidence, taken as a whole, supports the judgment of the trial court. Our standard of review is de novo on the record accompanied by the presumption that the findings of fact by the trial court are correct. TENN. CODE ANN. _ 5-6-225(e)(2) Where no transcript of the evidence is filed, the appellate courts will conclusively presume that every fact admissible under the pleadings was found in favor of the appellee. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 38, 311 (1949); Hollingsworth v. Safeco Ins. Cos., 782 S.W.2d 477, 479 (Tenn. App. 1989). Upon the record in this case, we can only find that the evidence does not preponderate against the judgment of the trial court. We affirm the judgment and the costs are taxed to the plaintiff/appellant. We remand the case to the trial court. John K. Byers, Senior Judge CONCUR: 2
Davidson
Workers Compensation Panel
Betty Jo Cleghorn v. Suburban Home Health, Inc. 01S01-9510-CH-00178
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon.Claudia C. Bonnyman,
This workers' compensation appeal has been referred to the Special 1 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 held that the plaintiff had not met her burden of proving that she sustained a permanent vocational disability as a result of her work-related injury. Plaintiff appeals, asserting that the evidence does not support the trial court's judgment. We affirm the judgment of the trial court. No transcript of the evidence was filed. The evidence available for our review consists of the medical depositions offered in the trial court and their attendant exhibits. The medical evidence, taken as a whole, supports the judgment of the trial court. Our standard of review is de novo on the record accompanied by the presumption that the findings of fact by the trial court are correct. TENN. CODE ANN. _ 5-6-225(e)(2) Where no transcript of the evidence is filed, the appellate courts will conclusively presume that every fact admissible under the pleadings was found in favor of the appellee. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 38, 311 (1949); Hollingsworth v. Safeco Ins. Cos., 782 S.W.2d 477, 479 (Tenn. App. 1989). Upon the record in this case, we can only find that the evidence does not preponderate against the judgment of the trial court. We affirm the judgment and the costs are taxed to the plaintiff/appellant. We remand the case to the trial court. John K. Byers, Senior Judge CONCUR: 2
Davidson
Workers Compensation Panel
Eunice Irene Freeman v. Sportswear and Associates and Liberty Mutual Insurance 01S01-9511-CV-00193
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Bobby Capers,
This workers' compensation appeal has been referred to the Special 1 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 the plaintiff had suffered a 65% permanent partial disability to the body as a whole and entered judgment accordingly. The issues raised by the defendant are: 1) Whether the proof preponderates against the trial court's judgment as excessive. 2) Whether the trial court erred in holding that the plaintiff's award was not limited to two and a half times the medical impairment rating. 3) Whether the trial court erred in awarding the plaintiff a lump sum payment. The judgment of the trial court is affirmed. There is no dispute that the plaintiff, who is 58 years of age, with a high school education, whose primary job was as a sewing machine operator, was injured in an industrial accident. Further, there is no dispute that the plaintiff sustained a permanent vocational impairment to the body as a whole. The plaintiff submitted the only medical evidence in this case. The physician testified that the plaintiff had sustained a 17% permanent medical impairment to the body as a whole. The plaintiff, her husband and a co-worker testified concerning the plaintiff's condition subsequent to the injury. Each of these witnesses testified to the limitations of the plaintiff's ability to perform work as a result of her injuries. Without question the plaintiff sustained a significant injury in this accident. The trial judge saw and heard the witnesses who testified in court and credited their testimony. Credibility of these witnesses is for the trial judge to find, and we do not, and can not, reweigh the credibility on appeal. On appeal, we review the judgment of the trial court with a presumption of correctness. TENN. CODE ANN. _ 5-6-225(e)(2). We are required, however, to 2
Macon
Workers Compensation Panel
Eunice Irene Freeman v. Sportswear and Associates and Liberty Mutual Insurance 01S01-9511-CV-00193
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Bobby Capers,
This workers' compensation appeal has been referred to the Special 1 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 the plaintiff had suffered a 65% permanent partial disability to the body as a whole and entered judgment accordingly. The issues raised by the defendant are: 1) Whether the proof preponderates against the trial court's judgment as excessive. 2) Whether the trial court erred in holding that the plaintiff's award was not limited to two and a half times the medical impairment rating. 3) Whether the trial court erred in awarding the plaintiff a lump sum payment. The judgment of the trial court is affirmed. There is no dispute that the plaintiff, who is 58 years of age, with a high school education, whose primary job was as a sewing machine operator, was injured in an industrial accident. Further, there is no dispute that the plaintiff sustained a permanent vocational impairment to the body as a whole. The plaintiff submitted the only medical evidence in this case. The physician testified that the plaintiff had sustained a 17% permanent medical impairment to the body as a whole. The plaintiff, her husband and a co-worker testified concerning the plaintiff's condition subsequent to the injury. Each of these witnesses testified to the limitations of the plaintiff's ability to perform work as a result of her injuries. Without question the plaintiff sustained a significant injury in this accident. The trial judge saw and heard the witnesses who testified in court and credited their testimony. Credibility of these witnesses is for the trial judge to find, and we do not, and can not, reweigh the credibility on appeal. On appeal, we review the judgment of the trial court with a presumption of correctness. TENN. CODE ANN. _ 5-6-225(e)(2). We are required, however, to 2
Macon
Workers Compensation Panel
Glenn H. Hall v. Bridgestone/Firestone, Inc. and Insurance Company of The State of Pennsylvania 01S01-9510-CH-00175
Authoring Judge: Ben H. Cantrell, Special Judge
Trial Court Judge: Hon. Robert E. Corlew, III,
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 the employee, Glenn Hall, workers' compensation benefits for the total loss of hearing in his left ear. On appeal the employer asserts that the employee failed to notify the employer of the injury as required by the workers' compensation statute. We affirm the trial court's finding that the proper notice was given. I. Mr. Hall testified that on June 22, 1993 his left ear began hurting after an explosion occurred in the department where he worked. Explosions are not uncommon in that department, and Mr. Hall customarily wore ear plugs to protect his ears from the noise. At the time of the accident, however, Mr. Hall had removed the ear plugs because he was shutting down the process to investigate a problem. Mr. Hall told a co-worker that his ear was hurting and went to see his supervisor. He told the supervisor that his ear hurt, and the supervisor referred Mr. Hall to the company nurse. The company nurse was not called to testify but the forms generated by Mr. Hall's visit to the nurse were introduced as business records. The records show that Mr. Hall had an inner ear infection, was out of the antibiotic he had been taking, and was referred to the company doctor. The records do not reflect that Mr. Hall claimed his ear problems were work-related. Neither do the doctor's notes from that same day reflect that Mr. Hall was claiming a work-related injury. Mr. Hall, however, - 2 -
Rutherford
Workers Compensation Panel
Glenn H. Hall v. Bridgestone/Firestone, Inc. and Insurance Company of The State of Pennsylvania 01S01-9510-CH-00175
Authoring Judge: Ben H. Cantrell, Special Judge
Trial Court Judge: Hon. Robert E. Corlew, III,
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 the employee, Glenn Hall, workers' compensation benefits for the total loss of hearing in his left ear. On appeal the employer asserts that the employee failed to notify the employer of the injury as required by the workers' compensation statute. We affirm the trial court's finding that the proper notice was given. I. Mr. Hall testified that on June 22, 1993 his left ear began hurting after an explosion occurred in the department where he worked. Explosions are not uncommon in that department, and Mr. Hall customarily wore ear plugs to protect his ears from the noise. At the time of the accident, however, Mr. Hall had removed the ear plugs because he was shutting down the process to investigate a problem. Mr. Hall told a co-worker that his ear was hurting and went to see his supervisor. He told the supervisor that his ear hurt, and the supervisor referred Mr. Hall to the company nurse. The company nurse was not called to testify but the forms generated by Mr. Hall's visit to the nurse were introduced as business records. The records show that Mr. Hall had an inner ear infection, was out of the antibiotic he had been taking, and was referred to the company doctor. The records do not reflect that Mr. Hall claimed his ear problems were work-related. Neither do the doctor's notes from that same day reflect that Mr. Hall was claiming a work-related injury. Mr. Hall, however, - 2 -
Rutherford
Workers Compensation Panel
Martin Ellison Hughes v. Pioneer Plastics, Inc. and WaUSAu Insurance Co. 03S01-9509-CV-00110
Authoring Judge: Senior Judge John K. Byer
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. Plaintiff injured his lower back lifting a heavy machine part at work on June 21, 1994. The trial court awarded him 5 percent permanent partial disability to the body as a whole and denied plaintiff's request for payment in lump sum. We affirm the judgment of the trial court. Plaintiff's injury at work on June 21, 1994 resulted in a herniated disc at L4- L5 which was treated conservatively without improvement. He underwent surgical repair on September 6, 1994 by Dr. Steven A. Sanders. He reached maximum medical improvement on February 5, 1995 and Dr. Sanders assessed 1 percent permanent partial impairment. Plaintiff was limited to lifting no greater than 35 pounds occasionally or 17 pounds frequently or five pounds constantly. He was told not to work at a job requiring constant bending. Plaintiff underwent independent medical examination by Dr. Gilbert Hyde, orthopedic surgeon, on March 1, 1995. Dr. Hyde also opined that plaintiff had reached maximum medical improvement and assessed 15 percent permanent partial impairment to the body as a whole. He opined the plaintiff should not lift over 25 pounds, not repetitively lift over 1 to 15 pounds, and do no prolonged riding, driving, sitting, bending, twisting or stooping. Dr. Norman Hankins, vocational specialist, evaluated plaintiff on March 13, 1995. He opined plaintiff is 48 percent to 64 percent vocationally disabled, with the variance owing to the differences in limitations placed on plaintiff by Drs. Sanders and Hyde. Plaintiff testified that he is in constant pain in his lower back and right leg. He has trouble sleeping due to the pain and cannot put any pressure on his right leg. He cannot drive, and a friend takes him where he needs to go. He does not believe he is able to work. Our review is de novo on the record with a presumption that the findings of 2
Knox
Workers Compensation Panel
Johnson Controls v. Shelby J. Cotham and Larry Brinton, Director, Second Injury Fund 01S01-9511-CV-00212
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Donald P. Harris
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. Plaintiff, Johnson Controls, Inc., instituted suit against defendant, Shelby J. Cotham, seeking a determination as to whether the defendant employee had sustained a work-related injury which was compensable. The Circuit Judge found the claim to be compensable and awarded 1 percent permanent disability benefits apportioning 75 percent of the award to plaintiff-employer and 25 percent to the Second Injury Fund. The employer has appealed the decision insisting defendant's knee condition was not caused by her work activities and that her tendinitis in her hand was not a permanent injury. The employee contends the evidence supports the trial court's findings and that the trial court was in error in directing the award of disability be reduced or set-off by amounts paid to her for short term disability benefits which she received for about five months. Shelby J. Cotham is 52 years of age and has a 7th grade education. She has been employed by plaintiff for about 22 years. During most of her employment she has been on production work on an assembly line or subline assembly requiring repetitive use of her hands and prolonged periods of standing and/or sitting. The record indicates she had suffered from osteoarthritis in her knees since 1984-1989; her hand problem first began during April, 1993; she worked through June, 1994, and did not ever return to work as she testified she could not perform her work duties while standing or sitting and that her hands would go to sleep at night; that she could not grip anything and her arm hurt. Her employer was aware of her osteoarthritis as it had resulted in her being off from work twice during the years 1992-1993. The employer questions the trial court's findings that her osteoarthritis was aggravated by her work conditions. Two physicians testified by deposition and their testimony is in conflict on the medical questions. The trial court resolved the dispute by accepting the testimony of her treating physician. 2
Clarence W. Lee v. K-Mart Corporation 03S01-9512-CH-00130
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Howell N. Peoples
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 claims to have suffered an injury by accident cognizable under the workers' compensation law when, on August 7, 1992, after 3 years of continuous employment, he was summarily relieved of his duties as manager of the K-Mart store in Hixson, Tennessee, demoted, and transferred to another store in Paris, Illinois. He alleged that he thereby sustained a sudden emotional injury resulting in total disability and unsoundness of mind. The defendant admitted that it removed the plaintiff from its Hixson store and transferred him to a smaller store at a reduced salary. It denied that the plaintiff gave notice of a work-related injury, and averred that he filed an age- discrimination claim against it without alerting the court or the defendant that he was of unsound mind. In course, the case was heard on the motion of the defendant for summary judgment, alleging the bar of the Statute of Limitations, TENN. CODE ANN. _ 5- 6-21, and the further allegation that the claim of emotional stress was not a compensable injury. The underlying facts are not disputed. Mr. Lee's difficulties began with his departure from company policy in disposing of defective or damaged merchandise which was to be destroyed in accordance with the manufacturer's instructions. Instead, he secreted these goods in a locked trailer, later donating them to charitable, fund raising causes. A portion of the funds realized from the sale of the damaged or defective merchandise went into a "flower fund" controlled by Mr. Lee which he used to provide gifts and trips to certain employees. Upon the belated discovery of this scheme, Mr. Lee was interviewed extensively and warned that he should expect stringent disciplinary action. He was then 5 years of age, had been manager of the Hixson store for 12 years, and had relocated 17 times. Mr. Lee was on vacation when the investigation began of his disposal of 2
