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| 03S01-9607-CV-00079
03S01-9607-CV-00079
|
Court of Criminal Appeals | 04/21/97 | ||
| Brady vs. State
03C01-9604-CR-00166
Originating Judge:Douglas A. Meyer |
Hamilton County | Court of Criminal Appeals | 04/21/97 | |
| Robert Rayford vs. State
02C01-9701-CC-00011
Originating Judge:Joe G. Riley. Jr. |
Lauderdale County | Court of Criminal Appeals | 04/18/97 | |
| Collins vs. Metro Gov't
01A01-9607-CV-00339
Originating Judge:Walter C. Kurtz |
Davidson County | Court of Appeals | 04/18/97 | |
| Mahler vs. Mahler
01A01-9507-CH-00303
Originating Judge:Henry Denmark Bell |
Williamson County | Court of Appeals | 04/18/97 | |
| Rickman, et. ux. vs. Molin, et. ux.
01A01-9609-CH-00412
Originating Judge:C. K. Smith |
Wilson County | Court of Appeals | 04/18/97 | |
| Roy Rose vs. Tipton Co. Public Works Dept., et al
02A01-9608-CV-00189
Originating Judge:Joseph H. Walker, III |
Tipton County | Court of Appeals | 04/18/97 | |
| Gilliam vs. Gilliam
01A01-9609-CV-00414
|
Davidson County | Court of Appeals | 04/18/97 | |
| Hand vs. Hand
01A01-9607-CH-00325
Originating Judge:Allen W. Wallace |
Humphreys County | Court of Appeals | 04/18/97 | |
| State vs. Riffey
03C01-9602-CC-00074
Originating Judge:Frank L. Slaughter |
Sullivan County | Court of Criminal Appeals | 04/17/97 | |
| State vs. Buford
03C01-9603-CR-00096
Originating Judge:Stephen M. Bevil |
Hamilton County | Court of Criminal Appeals | 04/17/97 | |
| Harold E. Mooney v. Brecon Knitting Mills, et al
02S01-9610-CV-00094
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 and its insurer contend the claimant's injury did not arise out of the employment and the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant, Mooney, is sixty-six years old and has three years of college and some vocational training. His primary vocation has been that of a traveling salesman. At the time of the accident, he was employed as regional sales manager for the employer and used his car to call on customers. On or about May 2, 1993, he was involved in an accident and received a blow to his chest. It is undisputed that he was on his employer's business at the time of the accident. A cardiologist diagnosed his injury as undiagnosed coronary artery disease exacerbated by chest wall trauma. When conservative care failed to produce the desired result, surgery was performed. The operating surgeon assigned a permanent impairment rating of from thirty to fifty percent and advised the claimant to retire. A vocational expert opined the claimant had a vocational opportunity decrease of ninety percent. He has not returned to work. The parties agreed to bifurcate the trial. After the first bifurcated trial, the trial judge found the claimant's injury to be compensable. After the second bifurcated trial, another trial judge awarded permanent partial disability benefits based on seventy-five 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 of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment are compensable. Tenn. Code Ann. section 5-6-12(a)(5). An injury is compensable, even though the claimant may have been suffering from a serious pre-existing condition or disability, if a work-connected accident can be fairly said to be a contributing cause of such injury. An employer takes an employee as he is and assumes the risk of having a weakened condition aggravated or exacerbated by an injury which might not affect a normal person. Harlan v. McClellan, 572 S.W.2d 641 (Tenn. 1978). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Kay S. Robilio, |
Shelby County | Workers Compensation Panel | 04/17/97 | |
| Anita Gardner v. World Color Press, Inc.
02S01-9609-CH-00081
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 to the Supreme Court of findings of fact and conclusions of law. The issue presented is whether the trial court erred in finding that the plaintiff sustained a 2 per cent (2%) permanent partial disability to both arms. The standard of review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); T.C.A. Section 5-6-225(e)(2). The panel finds that the evidence does not preponderate against the finding of the trial court and concludes that the judgment of the trial court should be affirmed. The employee, Anita Gardner, is thirty (3) years old and has a tenth (1th) grade education. She has obtained her GED and is currently enrolled in Dyersburg State Community College intending to become a nurse. She has worked for McDonalds Restaurant, Taco Casa Restaurant, Roseoco Gas Station and Doubleday Book Company. She went to work for World Color Press, Inc., in 1987. World Color Press prints, assembles and ships magazines. During much of her employment, she worked twelve (12) hours per day, seven (7) days a week. Her duties involved the use of her hands and wrists in a constant, fast paced, repetitive manner for long periods of time. In May of 1994, the plaintiff injured her left wrist (she is left handed), while using a manual banding device in the shipping department. In August of 1994, she began having trouble with her right wrist while working in the quality control 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Hon. Joe G. Riley, |
Dyer County | Workers Compensation Panel | 04/17/97 | |
| 03S01-9511-CC-00360
03S01-9511-CC-00360
Originating Judge:R. Jerry Beck |
Sullivan County | Court of Criminal Appeals | 04/17/97 | |
| Pamela Sue Higgins v. Angelica Corporation
02S01-9605-CV-00050
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 to the Supreme Court of findings of fact and conclusions of law. Defendant appeals from the trial court's award of 45 per cent (45%) permanent partial vocational disability of each arm, following surgery on each wrist for carpal tunnel syndrome. Defendant raises three (3) issues, that the plaintiff's injuries are not causually related to her employment and therefore, not compensable; that the plaintiff did not give proper notice as required by Tenn. Code Ann. section 5-6-21; and that the preponderance of the evidence does not support the trial judge's finding that the plaintiff suffered a 45 per cent (45%) permanent partial vocational disability to each arm. The panel has concluded that the judgment of the trial court should be affirmed. The employee, Ms. Pamela Sue Higgins, is thirty-eight (38) years old, quit school in the eighth (8th) grade, and she has performed sewing work for different manufacturers for twenty (2) years. Ms. Higgins began her employment with Angelica on January 14, 1991. Shortly after going to work for Angelica she was seen by Doctor James H. Thomas, a family practitioner, with the specific complaint that her right wrist had hurt for five (5) days. Approximately two and one-half (2 l/2) months later she returned to Doctor Thomas with the same complaint. Doctor Thomas soon concluded that her problem was carpal tunnel syndrome in nature and referred her to Doctor L. David Johnson, an orthopaedic surgeon, for treatment. After treating her conservatively, excluding other possible causes of her symptoms, and based upon electrodiagnostic studies performed by Doctor Ron Bingham, on May 13, 1991, Doctor Johnson diagnosed her as having moderate carpal tunnel syndrome on the right, and severe carpal tunnel syndrome on the left. Doctor Johnson subsequently performed carpal tunnel surgeries on both right and left wrists. She was also seen by Doctors Cohn and Cramer, and Pechacek, in consultation, in the process of eliminating other causes for her symptoms and confirming her diagnosis. Doctor 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Hon. C. Creed Mcginley |
Hardin County | Workers Compensation Panel | 04/17/97 | |
| James Clifford Tatum v. Methodist Health Systems, et al
02S01-9609-CH-00079
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 to the Supreme Court of findings of fact and conclusions of law. The director of the Workers' Compensation Division of Tennessee Department of Labor, as trustee for the Second Injury Fund (Second Injury Fund), appeals from the decision of the trial court. The court approved, over the objection of the Second Injury Fund, a settlement agreement between the employee, James Clifford Tatum, and the employer, Methodist Health Systems (Methodist Hospital of Dyersburg, Inc.), limiting the employer's liability to benefits based on 31 per cent (31%) permanent partial disability to the whole body. The claim against the Second Injury Fund was reserved until trial. The trial of the case was between the employee and the Second InjuryFund. Subsequently, at trial, the trial court found the employee to be permanently and totally disabled and held the Second Injury Fund liable for 6 per cent (6%) of that total disability. Because the court erred in approving the settlement over the objectionof the Second Injury Fund, the panel concludes that both judgments should be set aside, and the case remanded for a new trial on all issues. The trial court recognized its error and stated in its memorandum opinion of April 29, 1996, as follows: "This settlement was approved over the objection of the Fund. In retrospect, the Court should not have approved the settlement over the objection of the Fund, but should have tried both claims together." However, the trial court apparently believed that it had cured its error. We conclude otherwise. In a very recent case decided by the Supreme Court on December 23, 1996, the court reasoned as follows: Here, the trial court approved a settlement concerning the 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Martin, Judge |
Dyer County | Workers Compensation Panel | 04/17/97 | |
| Fred Bowen vs. Billy Compton
02C01-9701-CC-00016
|
Lake County | Court of Criminal Appeals | 04/17/97 | |
| Gregory Turner vs. Jimmy Harrison
02C01-9701-CC-00025
|
Lauderdale County | Court of Criminal Appeals | 04/17/97 | |
| Jack v. Delany
02S01-9608-CH-00073
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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the award of permanent partial disability benefits as being excessive. As discussed below, the panel has concluded the judgment should be modified. The employee, Scott, is forty-seven (47) years old, and has an eighth (8th) grade education. He has farmed and worked at a cotton gin. He has no specialized skills or training. He has an I.Q. of sixty-five (65) and a severe speech impediment. He worked for the defendant employer for twenty-two (22) years. During the course of his employment, he has performed various jobs and was operating a scrubber at the time of his injury. The employee was injured at work on June 4, 1994, when he was getting off of the scrubber and fell. He testified that he hurt his neck, back, and left shoulder. He was first seen by Doctor Michael Heck, who prescribed medication and returned him to work on light duty. He was then seen by Doctor Stewart, who returned him to regular duty with the defendant. Doctor Riley Jones treated the plaintiff and opined that he had a 1 per cent (1%) anatomical impairment to the left upper extremity. Dr. Jones gave him no impairment rating for his back and sent him back to regular duty. Dr. Robert Paul Christopher saw the plaintiff on July 24, 1995, for an independent medical evaluation. He opined that the plaintiff had a 1 per cent (1%) impairment to the left upper extremity, a 6 per cent (6%) impairment as a result of injury to the cervical spine, translating to a combined rating of 12 per cent (12%) to the body as a whole. 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Hon. J. Steven Stafford, |
Scott County | Workers Compensation Panel | 04/17/97 | |
| State vs. Stamm
03C01-9602-CC-00068
Originating Judge:D. Kelly Thomas, Jr. |
Blount County | Court of Criminal Appeals | 04/17/97 | |
| State vs. Gina Merrell
02C01-9604-CC-00131
Originating Judge:Julian P. Guinn |
Henry County | Court of Criminal Appeals | 04/17/97 | |
| David Davison v. Tfe, Inc., et al
02S01-9609-CV-00078
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 and its insurer argue the employee did not suffer an injury by accident as claimed. As discussed below, the panel has concluded the judgment should be affirmed. For the past thirty-three years, the employee or claimant, Davison, has been an over-the-road truck driver. He worked for the employer, TFE, from July 14, 1988 until June 2, 1994. On June 2, 1994, while attempting to load some boxes that had fallen from his truck while others were being unloaded, he felt a burning sensation in his back and leg. He had not felt the leg pain before but had suffered a previous back injury. He was given nerve blocks for the second injury, without relief. When the pain persisted, he visited Dr. Joseph S. Thomas, a general practitioner, and Dr. Robert Barnett, an orthopedic surgeon. Dr. Barnett diagnosed an aggravation of a pre-existing degenerative condition. The same doctor had seen the claimant before the second injury and opined that the new symptoms were the result of an irritated nerve root. The record does contain other medical opinions. Dr. Cunningham, a neurosurgeon, opined the claimant was not permanently impaired from the 1994 injury, but did not rule out the occurrence of an injury. Dr. Frazier assigned a permanent impairment rating but attributed it to the previous injury. The claimant has not returned to work. He testified that he is unable to work because of pain that he did not have prior to the 1994 accident. The trial judge gave the greatest weight to the opinion of Dr. Barnett and found the injury to be compensable as an injury by accident. 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). Where the trial judge has seen and heard the witnesses, especially ifissues 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). When medical testimony differs, it is within the discretion of the trial judge to determine which expert testimony to accept. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. C. Creed Mcginley, |
Hardin County | Workers Compensation Panel | 04/17/97 | |
| Norma Gail Flowers v. Emerson Motor Co.
02S01-9609-CH-00083
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, Emerson Motor Company, contends the award of permanent partial disability benefits is excessive. The panel has concluded the judgment should be affirmed. The claimant, Flowers, is 43 years old and a high school graduate. She has a certificate as a nursing assistant, but no other vocational training or education. She has worked continuously for the employer since 1972, in a variety of jobs requiring repetitive use of her hands. On December 6, 1993, the claimant slipped and fell at work, landing on the palms of her hands. Although her wrists and hands had bothered her before the fall, she was not disabled and had not seen a doctor. Following the fall, she saw Dr. Ronald Bingham, who ordered NCS/EMG studies and diagnosed bilateral carpaltunnel syndrome, moderate on the left and moderate to moderately severe on the right. Another doctor diagnosed, in addition to bilateral carpal tunnel syndrome, carpometacarpal subluxation and arthritis of the right thumb. Her carpal tunnel syndrome was found to be caused by repetitive use of her hands and wrists at work and the subluxation caused and the arthritis aggravated by the fall at work. Dr. Bourland assigned a permanent impairment rating of 15.8% to the claimant's right arm and none to the left. Dr. Joseph Boals assigned permanent impairment ratings of 2% to each arm. She is unable to perform her former duties for the employer and has pain and numbness in both hands. She cannot operate a keyboard. One vocational expert estimated her industrial disability at 6-65%; another opined she would be eligible for fewer than 25% of all available jobs. The chancellor awarded permanent partial disability benefits based on 5% to both arms. 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). The extent of an injured worker's disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., 75 S.W.2d 15 (Tenn. 1988). The extent of an injured worker's vocational disability is a factual 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. George R. Ellis, |
Gibson County | Workers Compensation Panel | 04/17/97 | |
| Hubert Holcomb, Jr. v. Aetna Life & Casualty Co.
02S01-9610-CH-00091
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 questions the allowance of certain credits to the Second Injury Fund (the Fund). As discussed below, the panel has concluded the judgment should be affirmed. It is undisputed that the employee or claimant, Holcomb, is permanently and totally disabled from a compensable injury by accident, that his compensation rate is $294. per week and that the maximum total benefit in effect on the date of the injury was $117,6. ($294. x 4 weeks). It is also undisputed he has received from the employer's insurer temporary total and temporary partial disability benefits totaling $32,121.82 and permanent disability benefits totaling $11,76.. From a previous compensable injury, the claimant was awarded permanent partial disability benefits equating to an award based on 21.875 percent to the body as a whole, or 87.5 weeks. Thus, under Tenn. Code Ann. section 5-6-28(b)1, the Fund's maximum liability is $294. for 87.5 weeks ($25,725.5), less any credit to which it may be entitled for payments already made by the employer or its insurer. The trial court gave the Fund credit against its liability for $25,725. of temporary disability benefits, thus holding the Fund had no further liability. It allowed the employer's insurer credit against any further liability for disability payments already made in excess of that number. Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Compensable disabilities are divided into four separate classifications: (1) temporary total disability, (2) temporary partial disability, (3) 1 T.C.A. 5-6-28(b)(1)(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of such awards equals or exceeds one hundred percent (1%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards. (B) Benefits which may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund. (Emphasis supplied) 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. William Michael Maloan, |
Obion County | Workers Compensation Panel | 04/17/97 | |
| Seals vs. State
03C01-9605-CC-00188
Originating Judge:Ben K. Wexler |
Hamblen County | Court of Criminal Appeals | 04/17/97 |