Thomas E. Roddy v. Beaman Bottling Company 01S01-9511-CH-00194
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Don R. Ash,
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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Rutherford
Workers Compensation Panel
Thomas E. Roddy v. Beaman Bottling Company 01S01-9511-CH-00194
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Don R. Ash,
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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Rutherford
Workers Compensation Panel
Thomas E. Roddy v. Beaman Bottling Company 01S01-9511-CH-00194
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Don R. Ash,
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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Rutherford
Workers Compensation Panel
Vickie Winningham v. Masters Health Care Center 01S01-9510-CV-00177
Authoring Judge: Per Curiam
Trial Court Judge: Hon. John 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2
Putnam
Workers Compensation Panel
Vickie Winningham v. Masters Health Care Center 01S01-9510-CV-00177
Authoring Judge: Per Curiam
Trial Court Judge: Hon. John 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2
Bill Purcell v. The Lilly Company and Federated Insurance Company 02S01-9508-CV-00073
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George H. Brown, Jr.,
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, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. 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). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
Shelby
Workers Compensation Panel
Bill Purcell v. The Lilly Company and Federated Insurance Company 02S01-9508-CV-00073
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George H. Brown, Jr.,
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, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. 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). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
This is a declaratory judgment action. The complaint seeks a declaration that a loss caused by damage to the plaintiff's building is covered under a commercial property insurance policy issued by The Shelby Insurance Company (Shelby). Following a bench trial, the Chancellor held that there was coverage under the policy and awarded the plaintiff a judgment for $12,352.92. Shelby appeals, arguing that there is no coverage because the premises were vacant at the time of the loss. It also argues tha the loss is not covered because the policy excludes coverage for damages "[c]aused by or resulting from theft." The plaintiff, Ted C. Smith (Smith), raises, as an additional issue, the failure of the trial court to award the statutory bad faith penalty authorized by T.C. A. § 56- 7- 105( a ) .
