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| Camille Gaines v. American Airlines, Inc.
01S01-9701-CV-00015
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 (1) the trial court erred in calculating the claimant's average weekly wage, (2) the trial court erred in awarding permanent partial disability benefits in excess of two and one-half times her medical impairment rating and (3) the trial court erred in awarding benefits for hypertension. The employee contends (4) the trial court erred in allowing the employer credit for certain temporary total disability benefits and (5) the appeal is frivolous. As discussed below, the panel has concluded the judgment should be modified as to the claimant's average weekly wage, but otherwise affirmed. The employee or claimant, Gaines, worked as a flight attendant for American Eagle, the employer. On September 13, 1993, she injured her back and neck when, as she was performing her duties on a flight from Nashville to Asheville, North Carolina, the aircraft encountered extreme turbulence. She was thrown about in the cabin, causing the injuries. After receiving medical care and a period of recuperation she returned to work but later quit because her residual disability rendered her unable to perform her work without disabling pain. After a trial on the merits, the trial court found the employee's average weekly wage to be $292.76 and awarded permanent partial disability benefits based on forty percent (4%) to the body as a whole and temporary total disability benefits for twenty-six (26) weeks. The trial court allowed the employer a credit in the sum of$3,361.8 for overpaid temporary total disability benefits. 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). Conclusions of law are reviewed de novo without any presumption of correctness. Wingert v. Government of Sumner County, 98 S.W.2d 921 (Tenn. 1995). 2
Authoring Judge: William S. Russell, Special Judge
Originating Judge:Hon. Thomas W. Brothers, |
Davidson County | Workers Compensation Panel | 08/28/97 | |
| Tammie S. Watson (Jamesvs. Liberty Mutual Ins. Co., et al.
01S01-9608-CH-00159
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 originally claimed injury to the right arm while working at La Del Manufacturing Company and injury to or aggravation of a pre-existing injury to the left arm at her later employment at McDonalds of Lawrenceburg. The two cases were consolidated for trial, and the trial court dismissed the second employer after the hearing. Plaintiff was awarded 35% permanent partial disability to each upper extremity, and the first employer was found liable for both injuries. We affirm the judgment of the trial court. On February 7, 1992, Plaintiff banged her right hand on a chair while working at La Del Manufacturing Company. She continued to work for La Del, using her left hand to perform tasks previously performed by the right or with both hands, until March 3, 1992. There is no contest concerning the injury to the plaintiff's right arm. On March 15, 1992 she saw Dr. Kenneth L. Moore, whose deposition indicates paresthesia in both hands. On April 22, 1992, she underwent surgical release due to carpal tunnel syndrome on the right. On May 27, 1992, when she returned to the surgeon for post-surgical follow-up care, she complained of tingling in her left hand. In November of 1993, plaintiff obtained a job at McDonalds through a program which hires handicapped workers. McDonalds placed her in various jobs in an effort to accommodate her limitations. Plaintiff testified that she continued to experience pain whenever she tried to do anything with the left hand. After a leg injury at McDonalds unrelated to the case at bar, plaintiff was unsuccessful in her efforts to get appropriate work limitation documentation for McDonalds from her doctor. When McDonalds withheld her return to work pending receipt of the required release, she went to work at Hardees, and later at Shoneys. On June 16, 1994, plaintiff had carpal tunnel surgery on the left hand. Dr. Moore opined when deposed that plaintiff sustained no additional medical impairment as a result of her job at McDonalds. However, he was unwilling to assert 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. James L. Weatherford |
Lawrence County | Workers Compensation Panel | 08/25/97 | |
| Ira Antonio Tenpenny v. USAir
01S01-9609-CH-00173
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Davidson County | Workers Compensation Panel | 08/25/97 | |
| Mcdaniel v. Universal
03S01-9612-CV-00121
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. T. C. A. _ 5-6-241(a)(2) authorizes the Court to "reconsider upon the filing of a new cause of action the issue of industrial disability" and enlarge a previous award in appropriate cases where the employee is no longer employed by the pre-injury employer and files a timely application for an increase in benefits. This complaint was filed September 1, 1994. The plaintiff alleged that she had suffered a job-related back injury in 1993 which was resolved under the workers' compensation law on July 18, 1994 by a judgment approving a lump-sum settlement based on a finding of 2 percent vocational disability, with the proviso that she be allowed to return to work "within her medical restrictions."1 The judgment provided for the payment of future medical expenses provided the plaintiff consulted the defendant before seeking treatment from an authorized medical provider. She further alleged that she returned to work on July 11, 1994 and on August 17, 19942 during the course of her employment she again injured her back which resulted in total disability for which she sought an enlargement of the previous award. The plaintiff's job was sedentary. It involved "putting screws in bags." Upwards of eight one-inch screws were placed in a small glassine bag, total weight less than one ounce. She testified that owing to the laziness of fellow workers she occasionally had to stretch her arms in order to reach the materials and on August 17, 1994 "pulled her back" resulting in the alleged new injury and increased disability. The defendant denied that the plaintiff was injured as alleged and asserted that her anatomical impairment was no greater than as found by the Court on July 18, 1994. The trial judge found that this was not "an appropriate case under the provisions of T. C. A. _ 5-6-241(a)(2)" and dismissed the case. The plaintiff 1These "medical restrictions" are not otherwise defined or explicated. 2Twenty-nine days after the settlement. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Ben K. Wexler |
Knox County | Workers Compensation Panel | 08/21/97 | |
| Ebasco v. Rice
03S01-9701-CH-00009
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 paraphrased issue in this case is whether the finding of 15% permanent partial disability is supported by a preponderance of the evidence under our standard of review as mandated by Rule 13(d), T.R.A.P. and T.C.A. _ 5-6-225(e)(2). It is not disputed that the appellee suffered a job-related accidental back injury on August 12, 1993, while using a 2-pound drill with one hand because of close working quarters. Officially, he lost no time from work but was assigned to lighter duties until he was laid off in July 1994. He testified that during the year following his injury, he missed about 25-3 days because of back pain. In October 1994 he was employed by another company as a pipefitter but was laid off after only three weeks because he could not do heavy lifting. He took re-training courses in valve technology and obtained satisfactory employment not involving the lifting of heavy materials. He testified that he can no longer engage in physical activities which require heavy lifting. Dr. Herbert Dodge was his treating physician. He initially prescribed conservative treatment for a spondylolisthesis at the lowest part of the low back, with accompanying muscle spasms. He did not relate the spondylolisthesis to an injury, because it was congenital, but said the muscle spasm was caused by trauma. Dr. Dodge continued to see the appellee who complained of pain but followed instructions with respect to light work. He opined that the appellee had a three (3%) percent medical impairment to his whole body as a result of his injury. Dr. Lester Littell examined the appellee on one occasion, March 2, 1994, for the purpose of evaluation. He concurred in the diagnosis of spondylolisthesis and testified that if the condition is symptomatic, i.e., if the patient suffered a reported injury which was documented and if he complains of pain, the AMA Guidelines call for a seven (7%) percent impairment rating. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Jeffrey F. Stewart, |
Knox County | Workers Compensation Panel | 08/21/97 | |
| Ronald Wade Allen v. Bosch/General Electric d/b/a B.G.A.M., Inc.
01S01-9504-CH-00062
This workers' compensation appeal from the Sumner County Chancery Court has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-225(e) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The dispositive issue before us is whether the chancellor erred in dismissing plaintiff's suit for benefits due to plaintiff's failure to provide timely notice of his injury to the employer as required by Tenn. Code Ann. _5-6-21. For the reasons set forth below, We affirm the judgment of the trial court. The plaintiff, Ronald Wade Allen, began working for the defendant, Bosch/General Electric, d/b/a B.G.A.M., Inc., on November 8, 199. Plaintiff claims that on December 2, 199, he was lifting a tray of motors with two other employees, Clara Branham and Marilyn Rogan, when he felt a sharp pain and burning sensation in his back. According to plaintiff, he put the motors down and told Branham and Rogan that he had hurt his back. He then left the employer's place of business and went home without telling the employer's nurse or the plaintiff's supervisors about the injury. Plaintiff testified that on the following day, December 21, 199, he told his supervisors, Donald Felts and Cornise Gillespie, about the incident lifting the motors the day before. Gillespie purportedly told plaintiff that he needed to see Jill Richardson, the company nurse. According to plaintiff, he saw Richardson who gave him ice packs for his back. Rogan, one of the employees working with plaintiff at the time he claims 2
Authoring Judge: John Maddux, Special Judge
Originating Judge:Hon. Tom E. Gray, |
Sumner County | Workers Compensation Panel | 08/19/97 | |
| Beard v. Quadrex
03S01-9610-CH-00109
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. Defendants, Quadrex Corporation and Liberty Mutual Insurance Company, have appealed from the trial court's award of 5% permanent partial disability to the body as a whole. They contend the court was in error in fixing any disability for plaintiff's psychological injury and that the award exceeded the statutory cap of six times the medical impairment rating of 5%. Plaintiff, Timmy Ray Beard, sustained a low back injury in a work-related accident on December 13, 1993. He was 36 years of age at the time of the trial and had completed the 11th grade. He was qualified to do manual labor jobs. He returned to work during June 1994 but had to stop working because he said he was hurting so much he could not work. He has not returned to work. Plaintiff came under the care of Dr. Donald D. Dietze, a neurosurgeon, who testified by deposition. He stated the lumbosacral injury resulted in a 5% medical impairment. Plaintiff was treated with medication and therapy followed by a work- hardening program. The doctor placed certain restrictions on his lifting, standing, stooping, etc. activities. Plaintiff eventually was seen by Dr. Catherine E. Gyurik, a psychiatrist, whose testimony was presented by two depositions. The first deposition was taken on December 4, 1995 and the second deposition was recorded on June 27, 1996. Dr. Gyurik first saw plaintiff on June 12, 1995, which was about eighteen months after the accident. She told the court plaintiff had gained about fifty pounds; he was not sleeping; he was not socially active; and he was irritable and agitated. She gave a diagnosis of classical depression with moderate impairment, which meant he was greatly impaired in connection with his vocational ability. She said this would result in a 25-5 percent impairment for his psychological condition. The doctor prescribed anti-depressant medication and was of the opinion the depression was due to the physical injury he had sustained on the job. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Frank V. Williams, III, |
Knox County | Workers Compensation Panel | 08/19/97 | |
| Ronald Merriman v. Dekalb County Highway Dept. & Aetna Casualty Ins. Co.
01S01-9610-CH-00221
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
DeKalb County | Workers Compensation Panel | 08/19/97 | |
| Gary Higginbotham v. Grinnell Corp.
02S01-9611-Ch-00101
This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 50-6-225 (e) (3) for hearing and reporting of findings of fact and conclusions of law.
Authoring Judge: Robert A. Lanier, Special Judge
Originating Judge:Hon. Joe C. Morris |
Chester County | Workers Compensation Panel | 08/18/97 | |
| Sharon Rivers v. Cigna Property & Casualty Co.
02S01-9612-CV-00105
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The first issue presented to the Court is whether or not the trial court erred in finding that the plaintiff was entitled to benefits for permanent partial disability based upon fif ty percent (5%) to the left lower extremity. It is not disputed that the claimant sustained an accidental injury arising out of and in the course of her employment with the defendant on January 24, 1995, when her left foot became crushed between pieces of equipment. She did not have a fracture but had a crush injury of the soft tissue to the left foot. She was placed in a cast and given medication and recommendations for exercise and warm soaks. She eventually returned to work around March 1, 1995. She was under the treatment of the physician provided by the employer but was released to resume her work and she did resume her regular work as a stacker machine operator for approximately one year. She continued to have complaints of pain and irritation in her ankle from time to time and saw the company doctor. Some time after July 11, 1995, her supervisor told her that the employer would not be responsible for her doctor's bill for the preceding visit to the company doctor. Subsequent to that, however, she returned to see the company doctor, who saw her without expense to her. He felt that she reached maximum medical recovery on July 25, 1995 and opined that she had not suffered any permanent impairment. He concluded that she had sustained a soft tissue injury without any fracture or disarrangement of the joint. On January 17, 1996, Plaintiff's attorney referred her to a rheumatologist in Memphis without prior notice or consultation with the employer. She was subsequently seen and treated by the rheumatologist. She had been satisfied with the treatment given to her by the company doctor before her supervisor told her that his bill would not be paid. The rheumatologist has testified that the claimant suffered a fifteen percent (15%) permanent impairment to her left lower extremity. He based his opinion upon his 2
Authoring Judge: Robert A. Lanier, Circuit Judge
Originating Judge:Hon. Whit S. Lafon |
Madison County | Workers Compensation Panel | 08/18/97 | |
| Sarah Archie v. S & R of Tennessee, A/K/A Siegel
02S01-9701-CH-00006
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. As stated by counsel for the appellant in oral argument, this appeal raises only one issue: Whether the evidence preponderates against the trial court's award of thirty percent (3%) permanent partial disability to the left arm and fifteen percent (15%) permanent partial disability to the right arm. Plaintiff is a 46 year old woman who worked for the employer for 19 years. At the time of her injury, which is not disputed, her duties were to remove five to seven pound parts from one line, inspect them and place them on another line. She began experiencing pain in her hands and was referred by the employer to Dr. D. J. Canale, who diagnosed her condition as compatible with carpal tunnel syndrome. On July 27, 1993, he operated on her left hand, which was causing her the most problem. He allowed her to return to work on September 13, 1993. He felt that she had done well and had no permanent physical impairment. She still complained of pain on November 4, 1993. He noted that she used a drill or press at work which she had to grab with both hands and had to lift stock off of an assembly line, although she did not have to do repetitive acts with the left hand. He felt that it was possible that she had some mild arthritis. He last saw her on December 8, 1993, at which time she was apparently not without symptoms and he felt that she was developing some sort of arthritic symptoms or tendonitis. He felt that her conditions were "related to her job." He recommended that she avoid repetitive stress on the hand and wrist, specifically any job that required forceful flexion of the wrist in a repetitive fashion over a number of hours in the day, and said that she would be at risk of having additional problems if she did such motions. Claimant's attorney referred her to Dr. Robert Christopher, a physical medicine and rehabilitation specialist, for evaluation. He saw her on May 17, 1975. In his opinion the repetitive motion activity at work aggravated her preexisting condition of rheumatoid arthritis, resulting in the complaints of constant pain in the left hand with 2
Authoring Judge: Robert A. Lanier, Circuit Judge
Originating Judge:Hon. John Hill Chisolm, |
Lauderdale County | Workers Compensation Panel | 08/18/97 | |
| Janice Farmer v. S&R of Tn, et al
02S01-9701-CH-00005
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The only issue upon this appeal is the degree of compensation to be awarded to the claimant. As a result of developing bilateral carpal tunnel syndrome, the claimant was referred by her employer to Dr. William L. Bourland for treatment. Dr. Bourland performed surgery in the form of carpal tunnel releases to each hand, on April 12 and April 26, 1994, respectively. Dr. Bourland was of the opinion that she had no permanent impairment to her left hand and five percent (5%) impairment to her right hand as a result of the condition and surgery. She returned to work with the same employer at the same wage. Some fourteen months later, she was referred by her attorney to Dr. Robert Christopher of Memphis for evaluation of her continuing complaints. Dr. Christopher examined her and gave her some tests and opined that she had a ten percent (1%) impairment of each upper extremity, which, based upon his reference to the AMA Guides to the Evaluation of Permanent Impairment, 4th Ed., translated to nineteen percent (19%) of the "combined values tables," and converts to an eleven percent (11%) impairment to the body as a whole. He felt that she should avoid any kind of work that required repeated wrist bending, either flexion or extension, and felt that bending her wrists many, many times per hour would be placing her at risk for further problems with her hands. He said that she should avoid jobs that require her to do repeated lifting of objects weighing more than twenty pounds, as well as pushing or pulling objects weighing more than twenty pounds and should avoid work that requires her to lift her arms above her shoulder height on a repeated basis. He said that she should not do work that required her to do severe exertion with her hands, such as squeezing tools or opening jars, or things of that sort, several times an hour. The employer concedes that the claimant has some permanent disability in her right arm, but feels that the award by the trial court was too great. 2
Authoring Judge: Robert A. Lanier, Circuit Judge
Originating Judge:Chancellor |
Lauderdale County | Workers Compensation Panel | 08/18/97 | |
| Paul King v. Goodyear Tire & Rubber Co.
02S01-9611-CH-00100
This workers' compensation appeal has been referred to this Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5- 6-225 (e) (3) for hearing and reporting of findings of fact and conclusions of law. The first issue presented on this appeal is whether or not the requirements of T.C.A. _ 5-6-241, limiting an award of permanent partial disability to 2 _ times the medical impairment rating, should have been applied to the award in this case. It is not disputed that the claimant sustained an accidental injury arising out of and in the course of his employment with the defendant employer when, on July 11, 1994, w hile working as a tirebuilder, he sustaine d an injury to his left shoulder. He subse quently saw Dr. James R. Wilkinson, an orthopedic surgeon. On October 6, 1994, Dr. Wilkinson performed a surgical procedure on his shoulde r which in volved dis secting the d eltoid muscle, removing the coracoac romial ligam ent and ch anging the anatomic construct of the shoulder. Dr. Wilkinson gave his o pinion that the claimant had sustained a permanent anatomical impairment of 6% to the left upper e xtremity due to joint crepitation, which amounted to 4% of the body as a whole. He agreed that, based upon his range of motion, his impairment should be an extra 2%. Dr. Wilkinson testified that he would expect claimant to have some weakness in his shoulder and would benefit from possibly avoiding overhead and heavy lifting and push ing a nd p ullin g aw ay fro m hi s bod y. He felt that claimant could have some problems with his shoulder performing his previous job. Dr. Wilkinson's rating conv erts to 4% physical impairment to the body as a whole. On January 6, 1995, claimant was released by Dr. Wilkinson to return to work, and he did return to w ork with th e defend ant emplo yer at his previous job, earning the same wages. On Ma y 1, 1995, claimant saw D r. Robert Barnett one time at the suggestion of his attorney. Claimant gave a history to Dr. Barnett of popping and creaking in his shoulder, which had impro ved, but said that he still felt the s ensation of it when he moved h is shoulder. 2
Authoring Judge: Robert A. Lanier, Circuit Judge
Originating Judge:Lanier, Judge |
Wayne County | Workers Compensation Panel | 08/18/97 | |
| Gary Higginbotham v. Grinnell Corp.
02S01-9611-Ch-00101
This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 50-6-225 (e) (3) for hearing and reporting of findings of fact and conclusions of law. The first issue for this panel to decide is whether or not this action is barred by thelimitations contained within the Workers' Compensation Act, T.C.A. _ 50-6-203 and _ 50-6-224. Those sections read as follows:
Authoring Judge: Robert A. Lanier, Special Judge
Originating Judge:Hon. Joe C. Morris |
Chester County | Workers Compensation Panel | 08/18/97 | |
| Maytag v. Elliott
03S01-9611-CV-00112
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 employer, Maytag Cooking Products, has appealed from the action of the trial court in awarding the employee permanent partial disability benefits of 4% to her left arm. The only issue on appeal is whether the expert medical testimony is sufficient to support the award of permanent disability. Carolyn D. Elliott was 5 years of age at the time of the trial and was a high school graduate. She had been employed by Maytag Cooking Products and a prior company for about 25 years. For some period of time, she was on a production line using an air gun to put screws through switches on a panel. Although she had some problems several years earlier, her left elbow began hurting so much she had to seek medical treatment during June 1993. This gradual injury resulted in her seeing several doctors and eventually in her seeing Dr. Richard B. Donaldson, the only expert medical witness to testify. At the trial below, which was about three years later, she told the court she still had pain in her arm; swelling of the arm frequently occurred and she did not feel her condition had improved very much. She had returned to work and was earning an amount equal to or greater than her previous wage. Her employer had reassigned her to lighter duty work but she did not feel she was performing her work satisfactorily. She testified she still could not iron, mow the yard, use a hair dryer or lift anything with her left arm. She is left-handed. She expressed the opinion that she had about an 8% loss of use of her left arm. Dr. Richardson, an orthopedic surgeon, testified by deposition. He said he saw her in connection with her obtaining a second opinion as to her medical condition. He testified she had a lateral and medial epicondylitis of the left elbow and this was a condition commonly known as tendinitis or tennis elbow. He recommended surgery which he felt would improve her condition but this had not 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Earle G. Murphy,. |
Knox County | Workers Compensation Panel | 08/13/97 | |
| Hayes v. School
03S01-9609-CV-00093
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 employer, School Calendar Company, has perfected this appeal from a decision of the trial court to award the employee, Alma Joyce Hayes, 2% permanent partial disability benefits to each arm. The employer insists the employee's injury was not work-related and that the claim was not filed within the one year statute of limitations period. The employee contends the award is not adequate and should be increased. Alma Joyce Hayes began working for School Calendar Company in 1988 and was employed as a proofreader. She testified her duties required her to use her hands and wrists repetitively. She first began experiencing problems with her hands and arms during July, 1994, thinking her condition was due to arthritis. She continued working until about February 17, 1995, when she was laid-off due to a reduction in the company's workload. While on lay-off status, she decided to see a doctor about her condition. On about June 28, 1995, Dr. Hovis examined her and told her she had bilateral carpal tunnel syndrome and that he was of the opinion her condition was work-related. She immediately notified her employer and a company representative told her the company did not feel responsible for her condition since she no longer worked for them. This suit for workers' compensation benefits was filed on August 3, 1995. Dr. Hovis performed surgery on the right hand on August 4, 1995, and surgery on the left hand on August 11, 1995. The circuit judge was faced with conflicting evidence on the causation question. The only expert medical testimony was presented by deposition from two orthopedic surgeons, Dr. William M. Hovis and Dr. M.J. Gutch. Dr. Hovis originally was of the opinion her condition was the result of her work duties based upon the history given. He later changed his opinion when he was shown a videotape depicting the nature and type of work she usually performed. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. William L. Jenkins, |
Knox County | Workers Compensation Panel | 08/13/97 | |
| Tucker v. Ercl
03S01-9603-CV-00025
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, Dorothy Tucker, has appealed from the action of the trial court in dismissing her complaint and refusing to reconsider the issue of whether disputed material issues of fact exist. Defendant employer, ERCL, Inc., and defendant insurance carrier, Lumbermen's Mutual Casualty Company, have filed a motion to dismiss the appeal on the ground a notice of appeal was not timely filed within thirty days after the entry of an order sustaining a motion for summary judgment in favor of the defendants. The motion for summary judgment was filed on January 13, 1995, and was supported by a deposition from plaintiff's treating doctor stating that there was no permanent impairment as a result of plaintiff's injury. Temporary total disability benefits as well as existing authorized medical expenses had been paid. Plaintiff did not file an opposing affidavit or deposition and an order was eventually entered on March 22, 1995, sustaining the motion and dismissing the case. On April 2, 1995, plaintiff filed a motion pursuant to Rule 59, T.R.Civ.P., requesting the court to reconsider, vacate the order of dismissal and set the case for trial. The motion was styled "Motion for Reconsideration" and was supported by an affidavit from Dr. Scott L. Parson, a chiropractor, stating his examination of plaintiff indicated she had a l% impairment due to the injury of her elbow. The trial court denied the motion stating the affidavit came too late. This order was entered on January 5, 1996, and a notice of appeal was filed on January 1, 1996, reciting the appeal was being taken from the entry of the two orders of the trial court. Defendants contend it is well established a motion to reconsider will not toll the thirty day period after entry of a final judgment and cite the cases of Anthony v. Kelly Foods Inc., 74 S.W.2d 35 (Tenn. 1986) and Daugherty v. Lumbermen's Underwriting Alliance, 798 S.W.2d 754 (Tenn. 199). In the Anthony case, a 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Rex Henry Ogle |
Knox County | Workers Compensation Panel | 07/15/97 | |
| Pemberton v. Campbell
03S01-9604-CH-00044
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 was awarded lifetime benefits based on a finding of total, permanent vocational disability, with the employer and Second Injury Fund ordered de novo concurrent, pro rata payments for permanent disability until the plaintiff reaches age 65. Because we find that the preponderance of the evidence does not support a finding of total and permanent disability, but supports a finding of 75% permanent partial disability to her whole body, the judgment is modified to award the plaintiff weekly benefits for 3 weeks. Our review is de novo on the record, accompanied by the presumption that the trial court's findings of fact are correct unless the evidence preponderates otherwise. T.C.A. _ 5-6-225(e)(2). Seiber v. Greenbrier Ind., 96 S.W.2d 444, 446 (Tenn. 1995). The plaintiff injured her neck and shoulders on September 15, 1992, rupturing a cervical disc. Dr. Bernhard Kliefoth performed surgery and released the plaintiff to return to work with no restrictions on October 7, 1992. She was employed as a teacher's aide and suffered the injury while lifting a child. She was then 37 years old. On April 1, 1991, she had injured her neck but had not pursued a claim; in this connection, the orthopedic surgeon, Dr. William Kennedy, testified that about one- half of the plaintiff's impairment was attributable to the former injury. Because of ongoing shoulder pain, the plaintiff saw Dr. David Hauge, who performed surgery on July 7, 1994 for suprascapular nerve entrapment and testified that the plaintiff had a 9% impairment for the cervical injury and a 15% impairment for the nerve entrapment, for a total of 17% impairment to her whole body. Dr. Kennedy evaluated the plaintiff on May 5, 1993 and testified that she had a 2% impairment due to neck problems. As noted, he attributed one-half of the impairment to the 1991 injury. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Billy Joe White, |
Knox County | Workers Compensation Panel | 07/14/97 | |
| Atwell v. Colonial
03S01-9609-CV-00090
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, S. Scott Atwell, has appealed from the trial court's action in modifying a portion of a judgment which provided for a structured settlement of a workers' compensation claim. Originally the parties to this action entered a judgment on September 17, 1993, finding plaintiff to be totally (1%) disabled and providing the award would be payable as follows: a. Lump sum payment of $55,235. upon the entry of judgment. b. Payment of $588. every two weeks for a one year period. c. Lump sum payment of $14,34. on August 3, 1994. d. Lump sum payment of $14,34. on February 28, 1995. e. Lump sum payment of $15,37. on February 28, 1996. Upon learning plaintiff was engaged in certain work activities, the defendant, Colonial Freight Systems, Inc., filed a motion on March 8, 1995, to modify the last two annual payments upon the ground the evidence indicated the employee was not totally disabled. This motion was filed pursuant to the provisions of T. C. A. _ 5-6- 231 and Rule 6, T. R. Civ. P. After conducting a hearing, the trial court found there had been a "change of circumstances" and entered an order relieving the employer of the responsibility of paying the last two annual payments. The order did not state whether relief was granted pursuant to the statute or Rule 6 or both. This ruling was based upon evidence the employee had been working at a construction site in South Carolina over a certain period of time. Evidence of this nature was produced at the hearing by a private investigator who had observed the employee and a video made at the construction site. On appeal the employee argues the payments which the court abated were classified as lump sum payments and were not subject to modification under the statutory language and further that the evidence did not justify relief under Rule 6. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Harold W Imberly, |
Knox County | Workers Compensation Panel | 07/14/97 | |
| Mcmahan v. City of Newport
03S01-9607-CV-00080
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 judge found that the plaintiff had sustained a ten percent permanent partial disability as a result of a work-related accident, although he did not have any additional assigned medical impairment. Plaintiff appeals, challenging the trial court's findings that plaintiff was not assigned an additional medical impairment rating and that plaintiff had a ten percent permanent partial disability. He also argues that the trial court should have reconsidered plaintiff's permanent partial disability award from his first injury. We affirm the trial court's judgment. Plaintiff, 45, has an eighth-grade education. He served with the Marines in Vietnam, has worked as a welder and has worked in maintenance. In 1983, he began working for the city of Newport, performing mostly maintenance tasks. He injured his back on October 8, 1992, for which surgery was performed; he returned to work after this surgery. He was awarded 4% permanent partial disability benefits for this injury. The trial court in that case found that plaintiff had a 15% medical impairment rating based on the testimony of Dr. Alan Whiton, plaintiff's treating orthopedic surgeon, that plaintiff's impairment could be as high as 15%. Plaintiff re-injured his back on July 12, 1994, when a power saw jerked while he was trimming trees. A surgical fusion was performed on plaintiff in October 1994. He did not return to work, although he was offered a position which would involve supervising prison inmates who were picking up litter. His supervisor, Tim Dockery, testified that this position was still available for plaintiff, although he admitted it had not yet been funded by the city council. Plaintiff testified that he experiences continuous pain in his back and down his right leg and that he does not believe that he can work. He also testified that Mr. Dockery told him he would be moved back into full duty after a few months; however, Mr. Dockery testified that he did not say this and that the position was intended to be permanent. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. William R. Holt, Jr., |
Knox County | Workers Compensation Panel | 07/14/97 | |
| Johns v. Howmet
03S01-9609-CV-00092
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordancewith 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 (1) the claim is barred by the applicable statute of limitations, (2) the trial court erred by setting aside a previously approved settlement and (3) the trial court erred in admitting certain evidence. The panel has concluded the claim is time barred. The employee or claimant, Wadey Johns, suffered a compensable injury to her thumbs and received the medical and temporary total disability benefits to which she was entitled under the Workmen' Compensation Act. After returning to work, she negotiated, without the assistance of counsel, to settle her claim for future medical and permanent partial disability benefits. On February 18, 1992 she petitioned, jointly with the employer, the circuit court to approve a settlement. The petition she signed said, among other things, "...that said settlement is in substantial accord with the Tennessee Workers' Compensation Law and is in the best interest of the plaintiff." The settlement provided the claimant would receive, in addition to those benefits already received by her, $3,263.94 in permanent partial disability benefits and an additional $3,236.6 for her future medical benefits, in a lump sum. The settlement was approved the same day by Judge Wilson, who expressly found the settlement to be in the best interest of the claimant. More than one year and five months later, on July 29, 1993, the claimant filed a "Petition to Set Aside Judgment," wherein she averred the employer was guilty of "fraud and gross misrepresentation" in procuring the settlement. The particular facts and circumstances constituting fraud and misrepresentation were not stated. After an evidential hearing, Judge Wilson granted the petition on the ground of mutual mistake of fact. After an oral hearing on April 11, Judge Jenkins awarded additional benefits. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. William Jenkins, |
Knox County | Workers Compensation Panel | 07/08/97 | |
| Lunsford v. Shaw
03S01-9607-CH-00078
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 issue in this case involves the enforcement of payment of post-trial medical expenses. The trial court found the employer, Shaw Industries, Inc., in contempt for unreasonable delay in paying post-judgment medical expenses. The only sanction the court imposed was an award of attorney's fees to the employee, Clark Vann Lunsford, as the hearing revealed the medical expenses originally in dispute were paid shortly prior to the hearing. The parties originally settled the workers' compensation claim by entry of an order on November 3, 1994, which provided for an award based on 4% permanent partial disability to the body as a whole. The order then provided the employer would pay "reasonable and necessary medical expenses for which it is liable to date and in the future." A petition for contempt was filed on October 1, 1995, alleging that during March, 1995, the employee was hospitalized in Bozeman, Montana and incurred medical expenses in the amount of $5,452.3 and that the employer's refusal to pay these expenses was a violation of the court's order. After a hearing on this issue, the Chancellor found there had been an unreasonable delay in paying the expenses and the delay violated the final judgment. The record indicates that a hearing had not been conducted prior to the contempt hearing to determine whether the medical expenses were the responsibility of the employer. On appeal the employer insists the employee should have filed a motion or petition requesting the court to determine whether the medical expenses were causally related to the compensable injury and obtained an order directing the payment of the expenses before it would be proper to file a petition for contempt for failure to pay the expenses. In response to this contention, the employee contends the court's order did 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Howell N. Peoples, |
Knox County | Workers Compensation Panel | 07/01/97 | |
| Luther T. Beckett v. Gaylord Entertainment Company
01S01-9610-CV-00209
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 issue is whether the defendant should be estopped to plead the bar of the Statute of Limitations. The trial judge ruled that waiver and estoppel were not implicated and dismissed the suit. The plaintiff alleged that he was injured while working for the Opryland Hotel on May 28, 1994. The defense of the Statute of Limitations was raised by motion for summary judgment, the hearing of which was bifurcated. The trial court determined that the plaintiff was aware of a job-related injury no later than June 8, 1994,1 but conducted a separate hearing on the issue of waiver and estoppel, following which he ruled that the delay in filing suit was the fault of the plaintiff. Plaintiff was employed at the Opryland Hotel in Nashville on May 28, 1994, as a doorman. On the early afternoon of May 28, 1994, he felt a pain in his lower right abdomen, and thought he had pulled a muscle and reported this to the door captain. He then told the bell services manager that he thought he had pulled a muscle and requested permission to go home, which was granted. He returned to work on his next scheduled work day, and continued to work without complaint until he was terminated for an unrelated reason on August 13, 1994. Plaintiff went to see his personal physician, Dr. Jacokes, about this injury on June 8, 1994. After examining the plaintiff, Dr. Jacokes advised him that he had a hernia. Plaintiff knew that his injury had occurred at work, but he made no mention to Opryland of his hernia before leaving his employment. Plaintiff testified that the pain in his lower abdomen worsened in April, 1995, and he sought additional medical treatment. His physician told him that he would need surgery and, as a result, he contacted defendant to file a workers' compensation claim. He was referred to Willis Corroon, the third party administrator of Opryland's workers' compensation claims, and spoke with Ms. Ann Parker, claims adjuster, at Willis Corroon. 1The Complaint was filed July 26, 1995. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Walter C. Kurtz, |
Davidson County | Workers Compensation Panel | 06/24/97 | |
| Calsonic Yorozu Corp., et al. v. Sulay Lamin
01S01-9608-CH-00163
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. |
Warren County | Workers Compensation Panel | 06/24/97 | |
| Ssi Services, Inc. v. Howard L. Baker
01S01-9609-CV-00191
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. This action began as one for a declaratory judgment under the workers' compensation laws that the accident suffered by the employee ("hereafter, plaintiff") resulted in minimal impairment only. The plaintiff counterclaimed, alleging that he sustained a job-related rotator cuff tear of his left shoulder with a biceps tendon tear requiring surgical repair on May 2, 1993, and that he aggravated the condition in the Spring of 1994 when further surgery was required. The plaintiff is 59 years old, employed as a painter, with an excellent work ethic. It is not controverted that he suffered the injury as alleged. He returned to full, uninterrupted employment in December, 1994 with restrictions. The trial court found that the plaintiff had sustained a 13 percent permanent partial disability to his whole body, and that the "cap embodied in the 1992 Amendment should apply since the plaintiff has returned to meaningful work activities." The plaintiff appeals, insisting (1) that the award of 13 percent permanent partial disability to the whole body is "contrary to the evidence and the law," and (2) that the plaintiff is "entitled to more than 13 percent permanent partial vocational impairment to the body as a whole." Our review of the findings of fact made by the trial court 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. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 584 (Tenn. 1991). Where the medical testimony is presented by deposition, this Court is able to make its own independent assessment of the medical proof to determine where the preponderance of the evidence lies.
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Gerald L. Ewell, Sr., |
Coffee County | Workers Compensation Panel | 06/24/97 |