01C01-9403-CC-00083 01C01-9403-CC-00083
Trial Court Judge: Robert W. Wedemeyer
Montgomery
Court of Criminal Appeals
Jimmy Mccarver v. Tecumseh Products Company 02S01-9512-CV-00124
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Julian P. Guinn,
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, Tecumseh, contends that the evidence preponderates against the trial court's finding that the employee's disability arose out of the employment. The panel agrees. On October 1, 1993, the employee or claimant, McCarver, while working for the employer, bumped his leg against a metal container and felt immediate pain. He was referred to a doctor, who diagnosed a bruised leg and arthritis. When the pain persisted, the claimant was referred to another doctor, who made a similar diagnosis. The claimant testified that he has difficulty standing, walking, squatting, sitting and sleeping that he did not have before the accident, and that he is no longer able to work. His condition interferes with his hunting and fishing. Doctors have determined that he has degenerative joint disease and synovitis of the left knee. There is no medical evidence that his condition is causally connected to the work-related accident of October 1, 1993. The trial court awarded permanent partial disability benefits on the basis of seventy-five percent to the left leg. 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 is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Unless admitted by the employer, the employee has the burden of proving, by competent evidence, every essential element of his claim. Mazanec v. Aetna Ins. Co., 491 S.W.2d 616 (Tenn. 1973). He must prove, among other things, that his injury arose out of his employment. In order to establish that an injury was one arising out of the employment, the cause of the injury must be proved. In all but the most obvious cases, causation may only be established by expert medical testimony. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). In the present case, there simply is no medical evidence either that the accident at work caused the injury or that it aggravated a pre-existing condition, causing the disability. Moreover, the causal connection is not obvious from the circumstances. We therefore find that the evidence preponderates against any award of permanent disability benefits. 2
Henry
Workers Compensation Panel
Jimmy Mccarver v. Tecumseh Products Company 02S01-9512-CV-00124
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Julian P. Guinn,
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, Tecumseh, contends that the evidence preponderates against the trial court's finding that the employee's disability arose out of the employment. The panel agrees. On October 1, 1993, the employee or claimant, McCarver, while working for the employer, bumped his leg against a metal container and felt immediate pain. He was referred to a doctor, who diagnosed a bruised leg and arthritis. When the pain persisted, the claimant was referred to another doctor, who made a similar diagnosis. The claimant testified that he has difficulty standing, walking, squatting, sitting and sleeping that he did not have before the accident, and that he is no longer able to work. His condition interferes with his hunting and fishing. Doctors have determined that he has degenerative joint disease and synovitis of the left knee. There is no medical evidence that his condition is causally connected to the work-related accident of October 1, 1993. The trial court awarded permanent partial disability benefits on the basis of seventy-five percent to the left leg. 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 is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Unless admitted by the employer, the employee has the burden of proving, by competent evidence, every essential element of his claim. Mazanec v. Aetna Ins. Co., 491 S.W.2d 616 (Tenn. 1973). He must prove, among other things, that his injury arose out of his employment. In order to establish that an injury was one arising out of the employment, the cause of the injury must be proved. In all but the most obvious cases, causation may only be established by expert medical testimony. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). In the present case, there simply is no medical evidence either that the accident at work caused the injury or that it aggravated a pre-existing condition, causing the disability. Moreover, the causal connection is not obvious from the circumstances. We therefore find that the evidence preponderates against any award of permanent disability benefits. 2
Henry
Workers Compensation Panel
Joe Boatman v. Ww of Memphis, Inc. D/B/A. Advance Muffler & Auto Service and Amerisure Insurance Company 02S01-9508-CV-00065
Authoring Judge: John K. Byers, Senior Judg
Trial Court Judge: Hon. James E. Swearengen
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 5% permanent partial disability to each arm. Defendant challenges 1) the finding of permanent vocational disability to the right arm and 2) the finding of 5% permanent partial disability to each arm. We affirm the judgment of the trial court. Plaintiff, 54 at the time of trial, has a high school degree and some college education, sufficient at least to be certified as a junior high school shop teacher in Texas. He taught for about two years. He has also been certified in mechanics by a vocational-technical school in Memphis. His work history includes work as a military supply clerk, factory worker, supervisor of inmates and of youths in juvenile detention and mechanic. Plaintiff worked for defendant-employer as an installer of brakes and mufflers and as a manager. On November 4, 1992, he slipped on some oil while guiding a car into the shop and fell into the pit, about eight feet down, head first. He tried to catch himself with his hands. Dr. Phillip Wright, an orthopedic surgeon, testified by deposition. He testified that plaintiff was diagnosed with a fracture of the left radial styloid (in the wrist), a fracture of the proximal phalanx of the left thumb and carpal tunnel syndrome in his right arm. Surgery was performed and a pin was temporarily placed in his left wrist. Plaintiff was given a splint for his right wrist and, in March 1993, was given a cortisone shot. After the shot, Dr. Wright did not testify to any complaints by plaintiff concerning his right arm. Dr. Wright assigned ten percent permanent impairment to the plaintiff's left upper extremity. He testified that, if plaintiff continued to have the same symptoms in his right arm, plaintiff would have a ten percent impairment to his right upper extremity. 2
Shelby
Workers Compensation Panel
Joe Boatman v. Ww of Memphis, Inc. 02S01-9508-CV-00065
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. James E. Swearengen
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), 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;
Shelby
Workers Compensation Panel
Sandra Whitehead v. Express Services, Inc. 02S01-9511-CH-00118
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dewey C. Whitenton
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, Express Services, contends the trial court's award of permanent partial disability benefits on the basis of eighty percent permanent partial disability to the left arm is excessive. The panel has concluded that the award should be modified to provide permanent partial disability benefits on the basis of fifty percent to the left arm. At the time of the trial, the claimant, Sandra Whitehead, was thirty- five years old and had a GED. She has worked on an assembly line and as a sewing machine operator. She began working for the employer as a temporary employee on June 22, 1994. On July 1, 1994, she accidentally cut her left wrist while opening boxes with a box cutter. She was first referred to Dr. Charles Stewart, who diagnosed a laceration of the left wrist. He sutured the laceration, but later referred her to Dr. Anthony Segal, a neurosurgeon, when she continued to complain. Dr. Segal conducted nerveconduction studies and found mild nerve damage and possible reflex dystrophy. Dr. Segal testified by deposition but assigned no permanent impairment. The claimant went toDr. James Varner, an orthopedic surgeon. Dr. Varner diagnosed a partial sensory nerve laceration of the median nerve and reflex dystrophy syndrome. He treated her condition with medication, physical therapy and a stellate block, and assessed a permanent anatomical impairment of fifteen percent to the left arm. The doctor advised her to avoid repetitive use of the left arm, but said she could perform jobs that did not require such repetitive use. He said she was not impaired from pronating and supinating her wrist. A physical therapist testified that functional capacity evaluation tests were invalid because the claimant refused to exert maximum effort. The claimant testified that her arm stays cold all the time and that she is unable to perform household chores such as twisting caps from jars and opening doors. The trial court awarded permanent partial disability benefits on the basis of eighty percent to the left arm. 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). 2
White
Workers Compensation Panel
Sandra Whitehead v. Express Services, Inc. 02S01-9511-CH-00118
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dewey C. Whitenton
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, Express Services, contends the trial court's award of permanent partial disability benefits on the basis of eighty percent permanent partial disability to the left arm is excessive. The panel has concluded that the award should be modified to provide permanent partial disability benefits on the basis of fifty percent to the left arm. At the time of the trial, the claimant, Sandra Whitehead, was thirty- five years old and had a GED. She has worked on an assembly line and as a sewing machine operator. She began working for the employer as a temporary employee on June 22, 1994. On July 1, 1994, she accidentally cut her left wrist while opening boxes with a box cutter. She was first referred to Dr. Charles Stewart, who diagnosed a laceration of the left wrist. He sutured the laceration, but later referred her to Dr. Anthony Segal, a neurosurgeon, when she continued to complain. Dr. Segal conducted nerveconduction studies and found mild nerve damage and possible reflex dystrophy. Dr. Segal testified by deposition but assigned no permanent impairment. The claimant went toDr. James Varner, an orthopedic surgeon. Dr. Varner diagnosed a partial sensory nerve laceration of the median nerve and reflex dystrophy syndrome. He treated her condition with medication, physical therapy and a stellate block, and assessed a permanent anatomical impairment of fifteen percent to the left arm. The doctor advised her to avoid repetitive use of the left arm, but said she could perform jobs that did not require such repetitive use. He said she was not impaired from pronating and supinating her wrist. A physical therapist testified that functional capacity evaluation tests were invalid because the claimant refused to exert maximum effort. The claimant testified that her arm stays cold all the time and that she is unable to perform household chores such as twisting caps from jars and opening doors. The trial court awarded permanent partial disability benefits on the basis of eighty percent to the left arm. 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). 2
