Tennessee Administrative Office of the Courts

Workers' Compensation Opinions

Format: 12/05/2019
Format: 12/05/2019
Johnny Ownby v. National American Insurance Company
03S01-9604-CV-00037
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 48% permanent partial disability to the body as a whole at a compensation rate of $266.66 per week. Defendant challenges the amount of disability awarded, the compensation rate applied and certain discretionary costs awarded. Plaintiff, 37, graduated from high school. Most of his work experience has been in heavy construction labor. He testified that he injured his lower back on July 4, 1994, while digging up an asphalt driveway and loading the asphalt chunks onto a truck for defendant's insured. He worked on light duty until October but has not worked since October.1994. Plaintiff was treated by Alan L. Whiton, M.D., an orthopedist, who testified in this case by deposition. He opined that plaintiff had a disruption or internal cracking of L4-L5 based upon the results of a discogram. He assigned plaintiff a five percent permanent impairment rating to the body as a whole according to the AMA Guides. George B. Brooks, D.O., a family practitioner, examined the plaintiff at the request of his attorney. He diagnosed degenerative disc disease with radiculopathy at L4-5 by history. He assigned a ten percent impairment rating according to the American Orthopedic Academy guidelines. He testified that he would not disagree with Dr. Whiton's five percent impairment rating but that he also considered that plaintiff had over six months of subjective complaints of pain. He further testified that some portion of his impairment rating was attributable to degenerative changes that predated plaintiff's work-related injury, but he could not apportion it. Fred A. Killefer, M.D., neurosurgeon, examined plaintiff at the request of the defendant. He found no objective signs of a permanent injury and opined that plaintiff had a normal spine with subjective complaints of pain. He further opined 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. Rex Henry Ogle,
Knox County Workers Compensation Panel 12/19/96
Wesley Eddins, Sr. v. North American Rayon Corporation
03S01-9602-CH-00016
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, North American Rayon Corporation, has appealed from the trial court's award of permanent disability benefits to plaintiff, Wesley Eddins, Sr. The Chancellor fixed the award at 45% to the body as a whole. Two issues are presented on appeal. First, the employer contends the trial court was in error in allowing temporary total disability benefits. Second, it is argued plaintiff did not incur any permanent disability as a result of the alleged work-related injury. Plaintiff is 29 years of age and is a high school graduate. He has been going to college for about two years attempting to rehabilitate himself for other types of employment. His college work would classify him as a sophomore. On about October 11, 1991, he was injured while at his work station when the floor gave away causing him to fall some distance below. He said the fall injured his back and he had immediate pain up and down his spinal cord and pain in his neck and legs. He continued to work for about two weeks until his condition became worse; at one point, he testified, he could not move his legs; the company doctor took him off work duties on about November 8, 1991, and he had not returned to work as of the date of the trial on September 25, 1995; his chief complaint has been massive muscle spasms; he told the court his condition did not improve much until August-September 1994. The record indicates he has seen many doctors, some have testified extensively in this proceeding and others appear in the record by medical reports, letters, etc., identified as collective exhibit #1. The review of the case is de novo accompanied by a presumption of the correctness of the findings of fact unless we find the preponderance is otherwise. T.C.A. _ 5-6-225(e)(2). 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge: Hon. J. Richard Johnson,
Washington County Workers Compensation Panel 12/19/96
Timothy Crabtree v. Apac Tennessee, Inc.
03S01-9603-CH-00035
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 the plaintiff had sustained an injury to his knee and back arising out of and in the course of his employment with the defendant. The trial court awarded the plaintiff 3% permanent partial disability to the leg as a result of the knee injury and 25% permanent partial disability to the body as a whole as a result of the back injury. The defendant says the trial judge erroneously found the plaintiff had given notice of an accidental injury to his back and says, also, that the awards for the injuries were erroneous. We affirm the judgment of the trial court. Injury to the Knee During March 1992, the plaintiff injured his right knee. He was treated by Dr. Paul Naylor for this injury. Dr. Naylor performed surgery on the plaintiff's knee on October 13, 1992 to repair the damage sustained by the plaintiff. Dr. Naylor testified the plaintiff had a 12% medical impairment to his knee as a result of the accident, which the defendant does not dispute. We find the evidence does not preponderate against the evidence of 3% permanent partial disability to the leg found by the trial judge, and we affirm the judgment thereon. T.C.A. _ 5-6-225(e)(2). Injury to the Back The plaintiff testified he injured his back in April 1993 when he reached back to lock the tailgate of a truck he was driving in the course of his employment. He testified he gave notice of the injury to his supervisor, James Hawkins, and the safety director, Steve Bell. Hawkins and Bell testified the plaintiff did not give them notice of an accidental injury as he testified. They testified the plaintiff related that the back pain he was having was connected to, or was a result of, the knee injury. 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. H. David Cate
Knox County Workers Compensation Panel 12/19/96
Richard Caldwell v. Activated Metals & Chemicals, Inc., et al.
03S01-9602-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. _ 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 35% permanent partial disability to the body as a whole. Defendant challenges the trial court's finding that plaintiff's impairment arose out of a work-related injury and the trial court's consideration of the testimony of the plaintiff's expert witness. Plaintiff, 43, finished the eleventh grade. He has a varied work experience, having worked in restaurants, construction, as a stockboy, a janitor/security guard and as a salesperson of draperies and linens. He testified that he suffered an injury in the nature of an occupational disease from inhaling aluminum oxide dust and the dust of a nickel aluminum alloy at his workplace, resulting in his having to stop working and seeking medical care on July 28, 1993. He began working for defendant in January 1993. Plaintiff was referred to Barry Frame, M.D., a specialist in thoracic and cardiovascular surgery, who testified in this case by deposition. He diagnosed pneumonia with complicating empyema (or lung abscess). Apparently, plaintiff suffered a pneumothorax, or puncturing of the lung. Dr. Frame opined that this pneumothorax was the result of infection, a pneumonia resulting from the aspiration of some anaerobic organism. No organism was cultured. When asked if plaintiff told him that his condition started as a result of exposure to a metal compound at work, Dr. Frame testified that he was aware that there was some consideration of an occupational factor, but that plaintiff should be referred to a pulmonologist to evaluate that; he had been concerned with dealing with the pneumonia and its complications. Chaim Cohen, M.D., a specialist in occupational medicine, examined the plaintiff at the request of his attorney. He examined plaintiff, reviewed material safety data sheets for compounds to which plaintiff had been exposed, reviewed 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge: Hon. Ben W. Hooper, Ii,
Knox County Workers Compensation Panel 12/19/96
John D. Baggett v. Firemen's Fund Insurance Company
01S01-9603-CH-00055
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 complaint alleges "[t]hat on or about the 22nd day of June, 1993, the Plaintiff, while operating a printing press, had his left thumb amputated when it became caught in the press." In point of fact, he suffered an "avulsive injury of the distal aspect of his thumb, just distal to the IP joint with nerve and vascular damage within the thumb proximal to the point of severance." The thumb fragment could not be re-attached and the amputation was surgically completed at the level of the interphalangeal joint, resulting in the loss of one-half of the thumb. The defendant admitted the material allegations of the complaint and essentially conceded that the plaintiff was entitled to recover benefits for the loss of a thumb. Notwithstanding that the complaint did not allege disability to the hand, the issue at trial was whether the injury so affected the hand as to justify an award for benefits thereto rather than for the loss of a scheduled member. The Chancellor limited benefits to the loss of the thumb; the employee appeals insisting that he is entitled to benefits for resultant partial permanent disability to his hand. The treating surgeon was Dr. Bruce Shack, a reconstructive specialist from the Vanderbilt Medical Center. He testified: Q. Now, Doctor, have you formed an opinion based upon a reasonable degree of medical certainty whether or not this injury Mr. Baggett suffered will result in any permanent impairment? A. Yes, sir, I have. Q. Will you tell the Court what that opinion is, sir. A. Well, this is a relatively straight forward type of case where the amputation through the interphalangeal joint of the thumb allows us to utilize the Guides that are set forth in the American Medical Association's Guides to the Evaluation of Permanent Impairment and basing Mr. Baggett's impairment on the loss of the thumb through the interphalangeal joint, I had rated him as 2 percent impairment of the hand. And, of course, that using the conversion tables equals an 18 percent impairment of the upper extremity and 11 percent impairment of the whole person. Q. Now, the injury to the thumb and hand as you've indicated, is that in anyway affected by the upper extremity? 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. Robert S. Brandt,
Davidson County Workers Compensation Panel 12/19/96
Fireman's Fund Insurance v. Taylor Barton Mills
03S01-9601-CH-00008
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 contends the evidence preponderates against the trial court's finding that his injury was caused by intoxication. The panel concludes the judgment should be reversed. On February 15, 1995, the employee or claimant, Mills, was working at his job as a machinist using a large lathe to bore a specifically sized hole into a fifty inch bull gear. After stopping the lathe to take a measurement, he accidentally - perhaps negligently - brushed against the lathe's starter button. The lathe started and the claimant's clothing was caught in the turning lathe. As a result, he was injured. Tests done at the University of Tennessee Medical Center shortly after the accident revealed a high level of cannaboid concentration from probable chronic use of marijuana. The claimant admits to being a chronic user of marijuana and had admittedly smoked two or three "joints" on the evening before the accident. Additionally, two witnesses testified that they thoughtthey saw him from some one hundred feet away, sharing a joint with another employee on the morning of the accident, before beginning work. The claimant and other employee denied it. The employer knew Mills was a heavy marijuana user and had fired him for thirty days on a previous occasion for "suspected" use of the substance, but re-hired him 3 days later at a higher rate of pay. An expert, without examining the claimant, opined from lab test results that marijuana intoxication was a possible contributing cause of his 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Dennis H. Inman,
Knox County Workers Compensation Panel 12/18/96
Patricia D. Woodward v. American General Life & Accident Insurance Company
03S01-9512-CV-00138
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, Woodward, contends the evidencepreponderates against the trial court's finding that her fibromyalgia was not causally related to her injury. The panel concludes the judgment should be affirmed. On July 23, 1992, the claimant was involved in a car wreck arising out of and in the course of her employment as a debit agent for the employer, American General. She suffered a mild strain of the neck, superimposed upon preexisting osteoarthritis. She was first seen by Dr. Sherrod, who made the diagnosis, then followed by Dr. Calvin Johnson at Wautauga Orthopedics. Dr. Johnson provided conservative care and assigned minimal permanent impairment. She was further treated by Dr. David Lurie, a rheumatologist, who diagnosed fibromyalgia but expressed no opinion as to whether her condition was causally related to the accident. The claimant was under Dr. Lurie's continuing care at the time of the trial. Her attorney referred her to Dr. Mark T. McQuain, a specialist in physical medicine and rehabilitation. Dr. McQuain's impression, as reflected in his notes, was: 1. Cervical degenerative disc disease,maximum at C4-5 and C5-6. 2. Generalized fibromyalgia/tension myalgia, post traumatic. 3. Patellofemoral degenerative joint disease, bilaterally. 4. Tendency for pain magnification. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Thomas J. Seeley, Jr.,
Washington County Workers Compensation Panel 12/17/96
Carolyn S. Todd v. St. Paul Fire and Marine Ins. Company
02S01-9603-CV-00023
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's insurer contends (1) benefits should be denied because of a false application for employment, (2) the trial court erred in awarding medical expenses not authorized by it, (3) the trial court erred in awarding temporary total disability benefits from the date of the injury until September 13, 1993 and (4) the award of medical benefits based on ten percent permanent partial disability to the body as a whole is excessive. The employee contends the award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded the award of temporary total disability benefits should be modified and the judgment otherwise affirmed. The employee or claimant is thirty-four and has an eighth grade education. She first completed a job application on September 25, 1989 and was hired as a flagman at Ford Construction Company, but performed other jobs, including driving a truck and shoveling or sweeping asphalt. Because the work was seasonal, she signed three subsequent applications. In her applications, the claimant denied any previous back injury or workers' compensation claim. In both respects, the application was false. She had in fact received in the past benefits for a back injury, from another employer. On July 2, 1992, the claimant injured her back while shoveling asphalt at work. She continued working until July 16th, when she was referred to Dr. J. Canale. Dr. Canale diagnosed myositis and muscle inflammation, for which he treated her conservatively until August 27th, when he released her to return to work without restrictions, limitations or permanent impairment. The claimant informed the employer that she was dissatisfied with Dr. Canale and asked to be referred to another doctor. In her testimony, she said the insurance company failed to provide her with the name of another doctor or a list from whom she could have made a choice. The trial judge apparently believed her. On the advice of her attorney, she saw Dr. James McAfee on September 11, 1992. Dr. McAfee diagnosed cervical strain, for which he prescribed physical therapy and nerve blocks. The doctor opined the injury was related to the injury at work and estimated the claimant's permanent impairment at eight percent to the whole body, from appropriate guidelines. The claimant incurred medical expenses for care prescribed by Dr. McAfee totaling $5,974., which the trial court found to be reasonable and reasonably necessary. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. J. Steven Stafford,
Dyer County Workers Compensation Panel 12/06/96
Mary A. Marshall v. Bc/Bs of Memphis, et al
02S01-9606-CV-00058
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 employee contends it was error to summarily dismiss her claim as being barred by Tenn. Code Ann. section 5-6-23, a statute of limitation. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for trial of all issues raised by the pleadings. The action was commenced by the filing of a complaint and summons on February 24, 1995 seeking workers' compensation benefits for injuries and disabilities arising out of and in the course of the claimant's employment with the defendant, Blue Cross / Blue Shield of Memphis. In particular, the employee claims that she has become permanently disabled from the repetitive trauma of operating a key punch machine. By their responsive pleading, the defendants deny the existence of the injury and deny that they received timely notice, but do not assert the affirmative defense that the claim is barred by any statute of limitations. The defendants then took the claimant's discovery deposition and interrogated her concerning, among other things, when she first knew her work was causing pain. Her deposition reveals that her pain began in 1992 and was reported to the employer. The employer, however, chose to treat her claim not as one for workers' compensation benefits, but for group health benefits. On January 18, 1996, the defendants served a pre-trial "Motion to Dismiss" the claimant's claim "pursuant to Rule 41.2 of the Tennessee Rules of Civil Procedure" for "failure to file such cause of action within the time prescribed by Section 5-6-23 of the Tennessee Code Annotated." The motion was, according to the trial judge's order of dismissal, "supported by" the claimant's discovery deposition. The trial judge treated the motion as a Tenn. R. Civ. P. 56 motion for summary judgment, found from the deposition that the claimant "was told in 1992 that she was suffering work related injuries to her wrists, shoulders, neck and back by her physicians (sic) statement to her employer so stating and was told by her employer she did not have a workers' compensation claim," and dismissed the claim as being time-barred. By Tenn. R. Civ. P. 56.3, summary judgment will lie if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment is almost never an option in workers' compensation cases; however, when there is no dispute over the evidence establishing thefacts 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Irma Merrill,
Marshall County Workers Compensation Panel 11/27/96
Doris Tabor v. Crossville Ceramics
03S01-9510-CV-00117
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 alleges that on March 7, 1994 she sustained injuries to her arms and hands during the course of her employment owing to their repetitive use; that she returned to work as a polisher for the Crossville Ceramics Company and that on March 23, 1994 she injured her neck or back while pushing a box of tiles. The defendants admitted that the plaintiff suffered a temporary injury but denied that she sustained a permanent disability. Thereafter, on May 24, 1995, an approved Order was entered whereby the plaintiff voluntarily dismissed "her cause of action as to her March 23, 1994 injuries" pursuant to Rule 41, Tenn. R. Civ. P. This procedure is unchallenged, and we will treat the complaint as having been amended to allege a compensable injury by accident which occurred on March 7, 1994. The plaintiff testified that she worked as a sorter in the polishing department of the ceramics manufacturer, the kind of work that required repetitive motions of both arms. On March 7, 1994 numbness and tingling developed in both arms which she reported to her supervisor and for which she received conservative medical treatment. She continued at her job for more than one year, leaving employment in April 1995 after allegedly suffering a neck injury. During the thirteen months between March 1994 and April 1995 the plaintiff was seen by a procession of physicians practicing various disciplines. Dr. Simpson, the orthopedic physician selected by the plaintiff, treated her over a period of months and concluded that she exaggerated her symptoms which were not anatomic. He testified that she suffered no impairment. His findings are supported by those of the Knoxville Neurology Clinic and the East Tennessee Orthopedic Clinic. The plaintiff was referred by her attorney to Dr. Gorman, an orthopedic surgeon practicing in Johnson City, who testified that she had a five (5) percent impairment in each arm, and recommended avoidance of "repetitive factory work." 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. John J. Maddux, Jr.,
Cumberland County Workers Compensation Panel 11/26/96
Ernest O. Wood v. Aluminum Corporation of America
03S01-9601-CV-00007
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. Fairly stated, the issues in this appeal are whether the employee should have been awarded permanent partial disability benefits and additional temporary total disability benefits. The panel has concluded the judgment should be affirmed. The employee or claimant, Wood, is a high school graduate who has worked for the employer, ALCOA, since approximately 1971. On June 7, 1991, while at work, he fell from the top of a tray of carbons, landing on his right side and injuring his right elbow, shoulder and hip. He continued working for the employer, while being conservatively treated for a torn right rotator cuff, until August 15, 1991. The injury was surgically repaired September of the same year and the employee returned to work for the employer on or about May 8, 1992 with minor restrictions. He was laid off six weeks later and has not worked since July 6, 1992. Because of other illnesses, he is receiving disability retirement benefits. He has received temporary total disability benefits for the time he lost from work before the layoff. He has also received medical benefits as required under the workers' compensation law. The medical proof as to whether the claimant's disability is causally related to his injuries is speculative and equivocal. In separate litigation, he claims to be disabled from asbestos-related lung disease. The trial judge disallowed the claim for disability workers' compensation benefits for insufficient proof that the disability is causally related to the injury at work. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. W. Dale Young,
Knox County Workers Compensation Panel 11/25/96
Anne H. Lawrence v. Itt Hartford Insurance Company
01S01-9511-CH-00199
Authoring Judge: William S. Russell, Special Judge
Originating Judge: Hon. Robert Brandt
Lawrence County Workers Compensation Panel 11/25/96
Amy Ferrell Robinson Manufacturing Company and Argonaut Insurance Company
01S01-9512-CH-00224
Authoring Judge: William S. Russell, Special Judge
Originating Judge: Hon. JEFFREY F. STEWART
Grundy County Workers Compensation Panel 11/25/96
Terry Campbell v. Old Republic Insurance Company
01S01-9511-CH-00213
Authoring Judge: William S. Russell, Special Judge
Originating Judge: Hon. Jeffrey F. Stewart, Chancellor
Campbell County Workers Compensation Panel 11/25/96
Rebecca Caldwell v. Kelly Services, Inc. and Continental Casualty Company
03S01-9603-CH-00022
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. The employer contends the evidence preponderates against an award of permanent partial disability benefits. The panel concludes the award of permanent partial benefits should be reversed. On September 1, 1994, the employee or claimant, Caldwell, an employee of Kelly Services, was sent to work at Moore's Quality Snack Foods. While working there, she slipped and fell, landing on her hand and arm. After receiving emergency care at the emergency room of a hospital, she was referred to Dr. Michael Lady, who diagnosed tenosynovitis and prescribed a splint and rest from work until her bruising and swelling subsided. On October 19, 1994, the claimant, while visiting a relative in Louisiana, saw Dr. Steiner, and orthopedic surgeon. Dr. Steiner eventually released her to return to work without any restrictions or permanent impairment. She did. On December 2, 1994, she left work because her injured arm was hurting. The next day, she revisited Dr. Lady, who prescribed a wrist splint, medication and rest. The doctor continued to treat her conservatively. His testimony by deposition included the following relevant questions and answers: Q. Okay. Now, Dr. Lady, based upon the American Medical Association guidelines, do you have an opinion which is also based upon a reasonable degree of medical certainty as the 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Joe C. Loser, Jr., Judge
Knox County Workers Compensation Panel 11/25/96
Joe Rines v. Mahle, Inc. and Royal Insurance Company
03S01-9509-CV-00101
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 appeal results from the refusal of the trial court to modify a judgment entered April 2, 1993 that the employee sustained no permanent disability as a result of a job-related injury in 199 but was entitled to future medical expenses associated with any spinal fusion he elected to undergo. The petition to modify was filed November 23, 1994. The plaintiff alleged that he "has increased disability from surgery performed by Dr. Wallace over and above that which he had when this matter was previously heard." The defendants [hereafter "employer"] moved to dismiss, alleging that the "Court has no jurisdiction to entertain the Petition filed on behalf of the plaintiff or to award him any relief and, further, that neither the provisions of T.C.A. _ 5-6-231 nor of Rule 6.2, TENN. R. CIV. P., are applicable herein." Thereafter, the plaintiff announced that he was relying exclusively upon T.C.A. _ 5-6-231, which provides: 5-6-231. Lump payments final -- Modification of periodic payments for more than six months. -- All amounts paid by employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than six (6) months may be modified as follows: (1) At any time by agreement of the parties and approval by the court; or (2) If the parties cannot agree, then at any time after six (6) months from the date of the award an application may be made to the courts by either party, on the ground of increase or decrease of incapacity due solely to the injury. In such cases, the same procedure shall be followed as in _ 5-6-225 in case of a disputed claim for compensation. The trial court granted the motion to dismiss, holding that since there was no "award payable periodically for more than six (6) months" the statute was inapplicable. On appeal the plaintiff argues that the award of future medical expenses qualifies as an "award payable periodically" within the purview of the statute, as contrasted to the argument of the employer that "an award payable periodically"
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. William L. Jenkins
Knox County Workers Compensation Panel 11/20/96
Kevin G. Mckenzie v. Blount Memorial Hospital, Inc., Royal Insurance Company and Tha Workers' Compensation Group
03S01-9603-CV-00028
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, Kevin G. McKenzie, has appealed from the action of the trial court in dismissing his claim by sustaining a motion for summary judgment filed by defendants, Blount Memorial Hospital, Inc., and THA Workers' Compensation Group. The circuit judge ruled the claim was barred by reason of the expiration of the one year statute of limitations. The complaint was filed on November 4, 1994, alleging plaintiff had sustained an injury on September 13, 1993, and on May 7, 1994. The hospital was provided insurance coverage by THA Workers' Compensation Group to December 31, 1993, and Royal Insurance Company for the period in question during 1994. The hospital and THA Group filed the motion for summary judgment contending any claim for the September, 1993, injury was barred. The motion is supported by two affidavits and Plaintiff's Answers To Interrogatories. The affidavit of Joe B. Hill, Jr., the Director of Human Resources, recites plaintiff originally injured himself during January, 1993; he reported on September 13, 1993, he had experienced a recurrence of pain from the injury and he received two sessions of therapy; the last medical treatment for the September 13, 1993, work-related aggravation of his pre-existing condition was on September 15, 1993; that on May 7, 1994, he reported to their emergency room requesting treatment; and the hospital did not make any voluntary payments to any health care providers nor was plaintiff billed for any treatment by the hospital. The other affidavit was executed by Mary Jane Johnson, a family nurse- practitioner of the hospital. This document indicates she saw plaintiff during January, 1993, for evaluation of a neck and shoulder injury which plaintiff said he had sustained a few days earlier; on September 13, 1993, he reported he had re- injured his neck and shoulder; he was referred to a medical group where he was seen the same day but he did not return for a follow-up appointment on October 4, -2-
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge: Hon. W. Dale Young,
Knox County Workers Compensation Panel 11/20/96
Terry Hambrick v. Vecellio & Grogan, Inc.
03S01-9603-CH-00030
This workers' compensation appeal has been referred to the Special W orkers' 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 drove a heavy truck for the defendant's construction firm. When asked to tell the Court "what happened when you got hurt," he replied: Well I was backing up to get loaded and the loader operator picked one, a big old rock up and he went to put it in the bed of the truck and when he did, he started to let it down and the rock just come out all at once. And when it did, it just rattled, you know, just shook the truck around and around. The accident occurred August 4, 1993. He was seen by Dr. Judson McGowan, an orthopedic specialist, on August 1, 1993, complaining of neck and thoracic spine pain. His condition was diagnosed as acute cervical lumbar strain which was treated conservatively over many months involving sophisticated testing procedures and referrals to specialists in other disciplines, some of whom believed the plaintiff had a psychological overlay with magnification of symptoms. Dr. McGowan testified that "this patient is heading toward the road of a chronic pain syndrome," that he had a five to ten percent impairment, and that he was able to return to lighter work. Dr. Stephen Kimbrough, a neurologist, saw the plaintiff on February 9, 1993, for the evaluation of neck and arm pain. He found no nerve involvement and little or no pathology. He believed that the plaintiff had some pain but "felt that it was somewhat exaggerated and there was some overlay to the pain as well." Like Dr. McGowan, he thought the plaintiff was likely a candidate for chronic pain syndrome, and that he exaggerated his symptomatology. He expressed no opinion about impairment, but felt that he could return to work. Dr. Paul Brown, a specialist in internal medicine and cardiology, testified that he had treated the plaintiff for a number of years for various illnesses, one of which was hypertension which he attributed in part to pain, but he declined to reference the hypertension to the accident and expressed no opinion about impairment. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. Thomas J. Seeley, Jr.
Unicoi County Workers Compensation Panel 11/20/96
Sidney Eugene Abbott and Willie Bean v. Firestone Tire & Rubber Co. and Liberty Mutual Insurance Company
02S01-9510-CV-00097
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 consolidated appeal, the employees or claimants, Abbott and Bean, contend the evidence preponderates against the trial judge's finding that they have not suffered a compensable occupational disease. The panel finds the judgment should be affirmed. Bean worked for Firestone for 39 years as a janitor, mold cleaner and production worker. Abbott worked for Firestone for 15 years as a maintenance man. Both were exposed to dust and fumes from chemicals used in the manufacturing of tires and other rubber products. Before the plant closed in 1983, both men began to experience difficulty breathing. Both are, or were during their years of work for the employer, heavy smokers. They developed chronic obstructive pulmonary disease (COPD). The diagnoses were first made in 1989 and 199, by Dr. Richard Wunderink, a physician board certified in both pulmonary and critical care medicine. The doctor also diagnosed Abbott with asbestosis and asbestos related pleural plaques. In his testimony, Dr. Wunderink opined that the exposure at Firestone contributed to and aggravated the COPD and that the asbestosis and asbestos related pleural plaques were directly related to exposure to asbestos. The doctor diagnosed Bean as having asbestosis and asbestos related pleural plaques, in addition to COPD. He also opined that Bean's asbestosis and pleural plaques were "caused by his occupational exposure to asbestos." The COPD was aggravated by exposure to dust at work. Dr. Paul Wheeler, a staff radiologist and chief of the pneumoconiosis section at Johns Hopkins, studied the x-rays of both claimants and opined in his testimony that neither claimant showed evidence of occupational disease related to exposure to asbestos. At the suggestion of Dr. Wheeler, the trial judge ordered CT scans, the results of which were read by separate doctors, one chosen by the claimants and one chosen by the defendants. Both found the claimants lungs to be normal, except that Bean apparently suffered from emphysema. The trial judge found that the evidence failed to establish the elements necessary for an award of workers' compensation benefits for an occupational disease. 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 with issues of credibility, where weight to be given oral testimony are 2
Authoring Judge: Joe C. Loser, Jr., Judge
Originating Judge: Hon. Janice Holder,
Shelby County Workers Compensation Panel 11/19/96
Mary Benson v. The Kroger Company and Cna Insurance Company
02S01-9601-CH-00002
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 (1) the award of permanent disability benefits based on one hundred percent to both arms is excessive, (2) it was error to award certain medical expenses, (3) it was error to award discretionary costs, and (4) it was error to award judgment against both defendants. The employee contends by cross appeal (1) the trial court erred in limiting the recovery for permanent partial disability to four hundred weeks, (2) the trial court erred in its award of temporary total disability benefits, (3) the trial court erred in allowing the employer credit for temporary total disability benefits paid, and (4) the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Benson, is 53 years old with a high school education and experience as a meat wrapper in grocery stores. She has no skills or training. She gradually developed bilateral carpal tunnel syndrome while so employed at Kroger. She had carpal tunnel surgery on her left arm in November of 1992 and returned to work at Kroger in January of 1993 as a meat wrapper. She continued to have problems with her hands and became disabled to perform her duties, which included heavy lifting and repetitive use of both hands in a cold environment. Medical benefits were discontinued in July of 1994. She retains a ten percent permanent impairment to her left arm and twenty percent impairment to her right arm, superimposed upon a pre-existing vascular disorder. As a result of the combination of the compensable injury and pre-existing condition, she is medically restricted from repetitive use of the hands, heavy lifting or working in a cold environment. The trial court awarded permanent partial benefits for four hundred weeks, based on one hundred percent permanent disability to both arms, medical expenses of two unauthorizedphysicians and futuremedical 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). 2
Authoring Judge: Joe C. Loser, Jr., Judge
Originating Judge: Hon. Neal Small,
Shelby County Workers Compensation Panel 11/18/96
Clint Evard v. Saturn Corporation
01S01-9601-CV-00019
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 claimant contends that the trail court erred by averaging two permanent partial disability rating for two scheduled members. Claimant also contends that the final anatomical impairment award was inadequate. The panel concludes that the methodology utilized by the trial court in arriving at the percentage of permanent partial disability was proper; however, the panel is of the opinion the final award was inadequate. In accordance with T.C.A. 56-225(e), the standard of review in this case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings. It is the claimant's burden to show by a preponderance that the evidence is otherwise. The claimant developed bilateral carpal tunnel syndrome as a result of his work at Saturn where his job involves repetitive grasping of small metal clips which are place on a car door as it passes along the assembly line. When he began installing around 6, clips/ day, his hands began to swell so severely that on one occasion he could not tell that he had cut his hand. Subsequently, he was diagnosed with carpal tunnel syndrome and carpal tunnel release surgery was performed on his right wrist. The claimant filed this workers compensation lawsuit on February 27, l995. At trial in l995, the trial court awarded the claimant a l% permanent partial disability to his right arm and a 5% permanent partial disability to his left arm which at his compensation rate of $382.79 per week amounts to $14,354.3. The percentage disabilities were established by one of the claimant's doctors, Dr. Gaw. The claimant argues that the trial court erred in assessing a percentage of disability to each arm separately under T.C.A. 5-6-27(3)(A)(ii)(m) rather than as one scheduled injury under T.C.A. 2
Authoring Judge: Hamilton V. Gayden, Jr., Special Judge
Originating Judge: Hon. Jim T. Hamilton
Maury County Workers Compensation Panel 11/14/96
Mary L. Brents v. Batesville Casket Company, Inc. and Lumbermen's Mutual Company
01S01-9508-CV-00141
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court for hearing andreporting of findings of fact and conclusions of law. See Tenn. Code Ann. _ 5-6- 225(e)(3)(199). Appellant Mary L. Brents presents the following issues for review: (1) whether the trial court erred in finding that attorneys' fees for both accrued and future benefits could not be paid solely from the future benefits award and (2) whether the trial court erred in reducing the amount of her weekly benefit payments by twenty percent, thereby reflecting the advance, lump-sum payment of attorneys' fees. After a review of the record, We affirm the judgment of the trial court. I. FACTUAL BACKGROUND On February 13, 1992, Appellant filed a workers' compensation action against Batesville Casket Company. On March 14, 1994, following a hearing, the trial court found that Appellant was due a fifty-five percent permanent partial disability award for a work-related injury that occurred in October of 1991. The trial court indicated that, had proper notice been given, Appellant would have also been due a fifteen percent permanent partial disability for a work-related injury that occurred in March of 1992. On February 9, 1995, this Court affirmed the judgment of the trial court regarding the October, 1991, injury and reversed the judgment of the trial court regarding the March 1992 injury, modifying Appellant's award to include the additional fifteen percent permanent partial disability. On March 13, 1995, Appellant received three checks pursuant to the decision of this Court. These checks represented (1) payment for all then- accrued and outstandingincome benefits, totaling $16, 211.13, (2) payment for attorneys' fees 2
Authoring Judge: Jerry L. Smith, Special Judg
Originating Judge: Hon. John W . Rollins, Judge
Coffee County Workers Compensation Panel 11/14/96
Charles Tolan v. Ed Brown
03S01-9603-CH-00027
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. The issue in this appeal is whether the defendant-appellee, Brown, is a statutory or principal employer of the plaintiff- appellant or claimant. The panel concludes that the judgment should be affirmed. Brown is the owner of rental property, including the Guthrie Mini Warehouse in Cleveland. He is not a builder or general contractor. In the late spring of 1994, he contracted with Kevin Eason to replace the roof on the warehouse. Among those employed by or on behalf of Eason to do the work was Charles Tolan. By the terms of the contract, Brown paid Eason $5,. and furnished the material. There was no time limit on when the work was to be completed and Brown exercised no control over the work of Eason's employee's, including Tolan. Brown did not provide the tools for the work, except one ladder. At one point, it became apparent that the work was not being done properly, which Brown pointed out to Eason. Eason corrected the problem. On July 12, 1993, Tolan was injured when he fell from the roof of the warehouse. He has sued for workers' compensation benefits. After a trial on the merits, the chancellor found that Eason and some other defendants, but not Brown, were liable to the claimant for workers' 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Earl H. Henley,
Bradley County Workers Compensation Panel 11/05/96
James Raymond Casey v. The Travelers Insurance Company
02S01-9605-CH-00047
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 contends (1) the award of permanent partial disability benefits is excessive, (2) the award of temporary total disability benefits is excessive and (3) the trial court erred in granting plaintiff's motion for discretionary costs. As discussed below, the panel concludes the judgment should be modified. The employee or claimant, Casey, is 29 years old and has a tenth grade education. His working experience consists of light to medium manual labor. On October 11, 1994, his right hand caught in some belts at work and was injured. He continued working for approximately one month. He was treated by an orthopedic surgeon beginning on December 22, 1994. The treating doctor diagnosed a rupture of the extensor tendon of the last joint of the claimant's right little finger, swelling of the PIP joint of the ring and middle fingers of the same hand and decreased range of hand motion, for all of which he prescribed a splint for the little finger and range of motion exercises for the hand. In time the swelling disappeared and he recovered full range of motion in the hand. He improved to the extent that he could have returned to work on January 13, 1995. The doctor assigned a permanent partial impairment rating of eight percent to the right little finger because the claimant "lacked about thirty degrees of extension of the DIP joint of the right little finger." The doctor's testimony also included the following questions and answers: Q. ... in your opinion, he did not sustain any permanent impairment with regard to his hand or to the arm? A. No, Ma'am. Q. Okay. In your opinion, ... would the plaintiff have necessarily had any problems in going back to work and using his hand? 2
Authoring Judge: Joe C. Loser, Jr., Judge
Originating Judge: Hon. George R. Ellis,
Crockett County Workers Compensation Panel 11/05/96
Hazel Maness Flatt v. The Insurance Mart, Inc.,
02S01-9601-CH-00007
This workers' compensation appeal was heard by the Special Workers' Compensation Panel in accordance with provisions of T.C.A. _ 5-6-225(e)(3). We have by this opinion reported our findings of fact and conclusions of law to the Supreme Court. Hazel Maness Flatt ("plaintiff") was employed by Gary Wright and his sister Nita Middleton to care for their mother, Lorene F. Wright, at her residence in Chester County. As part of her employment, plaintiff lived in Ms. Wright's home from Monday through Friday. Other sitters provided care for Ms. Wright on weekends. Plaintiff's job duties included fixing meals, cleaning the house, sweeping, vacuuming, washing clothes, taking Ms. Wright on errands, and generally just watching after her. On about October 5, 199, plaintiff injured her back while assisting Ms. Wright into plaintiff's car. The record reflects that Gary Wright served as president of The Insurance Mart, Inc. ("defendant"), a company engaged in the sale of automobile insurance in Nashville. Wright and his wife were the sole shareholders of the defendant company. His sister, Nita Middleton, was an employee of defendant. Plaintiff was paid her weekly checks from defendant's payroll for her services to Ms. Wright. Her W-2 Wage and Tax Statement for 199 listed defendant as her employer. However, defendant listed plaintiff regularly on its Non-Employee Compensation Report. For these apparent reasons, plaintiff filed suit against defendant in the Chancery Court of Chester County. Following a bench trial, the chancell or denied plaintiff's claim for workers' compensation benefits on the grounds that (1) plaintiff was a domestic servant and not an employee of defendant, and (2) that she was also an independent contractor. This appeal followed. 2
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Originating Judge: Hon. Joe C. Morris,
Chester County Workers Compensation Panel 11/01/96