Tennessee Administrative Office of the Courts

Workers' Compensation Opinions

Format: 12/10/2019
Format: 12/10/2019
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
Allen v. Jones
02S01-9512-CV-00127
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. James M. Tharpe
Shelby County Workers Compensation Panel 11/01/96
Brian Matthew Woosley v. Townsend Electric Company
02S01-9505-CH-00040
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Our scope of review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-22 5(e)(2). The sole question raised on appeal is whether the evidence preponderates against the chancellor's holding that the employee's injury arose out of the course and scope of his employment. For the reasons set forth below, we affirm the trial court. The plaintiff, Brian M. Woosley ("Woosley"), was employed as an electrician's he lper for To wnsend Electric. Du ring the sev eral month s of his employment with Townsend, he worked at a series of job sites. The method by which he would arrive at the site varied. For two of the jobs, he met the foreman at the Townsend "shop"on the first day of the job; thereafter he drove his own vehicle to the job site. At a third job location, he met the foreman at the Townsend shop and rode with him to the job site. While at the shop, he sometimes loaded material for use on the job. At a fourth site, the foreman drove to Woos ley's home an d transporte d him to the job. Woo sley was nev er paid until he arrived at the job site and he was never reimbursed for transportation expenses when he drove his own vehicle. On July 13, 1992, Woosley was working at a fifth job in Brownsville when he was injured en route to the job site. For the two weeks prior to his injury, he met Harold Matlock ("Matlock"), the job foreman, at the shop each day and the two went to the Brownsville job together. While working in Brownsville, Woosley was not required to pick up or load materials; he received no instructions 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge: Hon. Joe C. Mo Rris
Madison County Workers Compensation Panel 10/30/96
Barbara Wallace v. Cadillac Curtain Company
02S01-9510-CH-00099
This worker's compensationappeal has been referred to the special worker's 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. Trial in this matter was conducted February 9, 1995. On May 22, 1995, the Chancellor entered a final judgment denying compensation to plaintiff and dismissing her lawsuit.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. John Hill Chisholm
Tipton County Workers Compensation Panel 10/30/96
Charles Leroy Stafford v. Mid-America Corporation and Larry Brinton, Jr.
03S01-9512-CH-00132
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 presented by this appeal involves the extent of the claimant's permanent disability. The panel concludes thejudgment should be modified as provided below. The employee or claimant, Stafford, is forty-eight with a ninth grade education. On December 23, 1993, he suffered a compensable injury to his neck and arm, for which he received medical treatment and lost time from work. The treating physician assigned a permanent impairment rating of 3% to the whole body and released him to return to work in August of 1994 with no restrictions. From a previous injury, the claimant had received an award based on ninety-five percent to the body as a whole. The chancellor awarded permanent partial disability benefits on the basis of five percent to the body as a whole, reasoning that the claimant had not yet become rehabilitated from his previous injury. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Frederick D.
Knox County Workers Compensation Panel 10/30/96
Harley R. Rucker v. Rockwood Electric Utilities
03S01-9511-CH-00127
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 was injured when he fell and hit his arm on a buzz saw while cutting trees along utility lines as an employee of Woodland Tree Service, which had a contract to cut the trees for Rockwood Electric Utilities. The trial judge dismissed plaintiff's complaint, finding that Rockwood Electric Utilities was not plaintiff's statutory employer under TENN. CODE ANN. _ 5-6- 113. However, he found plaintiff to have sustained a 45% permanent partial disability to his right hand. We reverse the judgment and remand the case to the trial court. Plaintiff was hired by Woodland Tree Service to help fulfill Woodland's contract with Rockwood Electric Utilities. The agreement between Woodland Tree Service and Rockwood Electric Utilities was in the form of a written contract which was introduced at trial. Plaintiff reported every morning to Rockwood Electric Utilities where he met with Don White, a supervisor at Rockwood, to learn whether he should continue working on the present job or if he needed to work on some emergency project. He would also pick up a "bucket truck" owned by Rockwood to be used in cutting trees. Woodland provided all of the other equipment used by its employees. Occasionally, Rockwood supervisors would come to the site where Woodland employees were working to check on the progress of the work, occasionally telling the employees to hurry up or moving them elsewhere to a "hot spot." Woodland had absolute authority to hire and fire its own employees. Under the contract between the parties, Rockwood reserved the right to provide equipment and materials at a lower cost if those provided by Woodland were too high. Woodland paid its employees directly but according to a schedule of wages set by Rockwood. Woodland was required to notify Rockwood of changes in wage rates. Under their contract, Rockwood reserved the right to inspect Woodland's work and audit its books. The contract also provided that Woodland employees could not enter the area where power lines were located unless 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. Frank V. Williams,
Knox County Workers Compensation Panel 10/30/96
William O. Worley, Jr. v. Tecumseh Products Company
01S01-9509-CV-00160
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. In this case, the trial court awarded 45% permanent partial disability to the right arm. Defendant contends that the evidence does not support the percentage of disability awarded and requests that this court reduce and amend the judgment of the trial court accordingly. The Defendant also contends that the trial court erred in accrediting the testimony of Plaintiff's expert witness over the testimony of the treating physician. The final issue is whether the trial court erred in awarding discretionary costs for the deposition of Plaintiff's expert medical witness. The Defendant also raises the issue of whether the trial court erred in awarding a lump sum. As the benefits have now accrued, this issue is moot. On June 19, 1992, Plaintiff injured his right arm and wrist while working on a machine. Plaintiff is 48 years old and has a high school education. His work experience consists of working in the parts department, as a mechanic, as a tool and die worker, on a surveying crew, as a fire fighter, as a guard, and as a water pipeline repairer. Each of these jobs required heavy manual labor and the use of Plaintiff's arms and hands. Plaintiff had been employed at Tecumseh for approximately a year and a half when he sustained the injury. Dr. L. L. Carter, Jr. treated the Plaintiff after he was injured. Dr. Carter first examined Plaintiff on July 7, 1992. Dr. Carter testified, by deposition, that the nerve conduction tests showed elbow nerve and wrist nerve damage. Initially, Dr. Carter treated this condition conservatively, with a wrist splint, with no improvement. On August 31, 1992, Dr. Carter performed ulnar nerve decompression and submuscular transposition. At the same time, carpal tunnel release in the right hand and a nerve graft to the neuroma on the right wrist were performed. Three days later, Plaintiff was told to return to light work. Plaintiff was returned to regular work on December 15, 1992. Dr. Carter did not see Plaintiff again until January 8, 1993, at the request of
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge: Hon. Buddy D. Perry,
Sequatchie County Workers Compensation Panel 10/25/96
Alva Marie Reynolds v. Wal-Mart Stores, Inc.
01S01-9509-CH-00172
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 findings of fact and conclusions of law to the Supreme Court. Alva Marie Reynolds, the plaintiff- employee, appeals the decision of the Coffee County Chancery Court denying her relief on her worker's compensation claim. On appeal, the sole issue is whether the trial court erred in finding that the plaintiff failed to carry the burden of proving that she sustained an injury arising out of her employment. The trial court found plaintiff 's injury was the result of a pre-existing idiopathic condition. On January 5, 1993, the plaintiff, who was at that time sixty-two years old, sustained an injury to her ankle when she fell at her place of employment, Wal- Mart. The plaintiff had worked at Wal-Mart in diverse capacities for eleven years before her accident, and at the time of her injury, she had been working in the fitting room area for a couple of years. In addition to monitoring the clothing which was brought in and out of the fitting room, she answered Wal-Mart's incoming calls, made announcements, and paged employees within the store. Regarding her fall, the plaintiff testified that, after being told to take a hurried break, she rushed out of the fitting room and fell at the point that the floor changed from carpet to tile. She testified that she had not previously experienced numbness in her legs nor had she ever fallen at work or home before this incident. The plaintiff worked the remainder of the day and did not see a doctor until the next day when her ankle was diagnosed as being broken. On cross-examination, the plaintiff acknowledged that in two depositions taken after the accident, she did not mention that she was in a hurry at the time that she fell. She explained that she did not remember this until later. However, in a deposition 2
Authoring Judge: Erry L. Smith, Special Judge
Originating Judge: Hon. John W. Rollins, Judge
Coffee County Workers Compensation Panel 10/25/96
Phillip L. Pyrdum v. Teledyne Systems Company Inc., Teledyne Lewisburg
01S01-9601-CH-00009
This worker's compensation appeal has been referred to the special worker's 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.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. Tyrus H. Cobb
Marshall County Workers Compensation Panel 10/25/96
Neva Jewel Milam v. Hca Health Systems, Inc. d/b/a Centennial Medical Center
01S01-9601-CH-00004
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 contends (1) the award of permanent partial disability benefits is inadequate and (2) the chancellor "erred as a matter of law by deciding, before any evidence had been heard or any witnesses testified, that the on-the-job accident had only a tangential relationship with" her injury. The employer seeks dismissal of the appeal because the claimant did not file a statement of the evidence and was not entitled to a copy of the transcript of the evidence. Because a transcript is part of the record on appeal, the issue raised by the employer must necessarily be considered first. Unlike some other jurisdictions, Tennessee does not provide official court stenographers for civil trials. Instead, it is customary in this state that the parties to civil litigation will engage a stenographer and pay a per diem for stenographic services. Those parties who participate in the per diem may, for an additional fee, order from the stenographer a transcript of the evidence for use on appeal in case of an adverse decision in the trial court. The stenographer does not customarily make the transcript available to a party who did not participate in payment of the per diem. It is a matter of contract among the parties to the litigation and the non-party stenographer; and a party who does not join in the engagement and payment of a stenographer has no contract right to require the stenographer to transcribe the record which is therefore unavailable until made available on terms satisfactory to both the stenographer and the party or parties who engaged the stenographer. See Beef N' Bird of America, Inc. v. Continental Casualty Company, 83 S.W.2d 234 (Tenn. App. 199). Instead, a non-participating party may prepare a narrative statement of the evidence for use on appeal. The procedure for including a statement of the evidence in the record on appeal is provided by Tenn. R. App. P. 24(c). We find no statement of the evidence in the record. In this case, the employer engaged the services of a stenographer - or court reporter - in the trial court and paid the full per diem. The claimant did not participate. When the chancellor issued his decision, however, she was dissatisfied with the outcome and decided to appeal. Instead of preparing a statement of the evidence, she applied to the trial court for an order requiring the employer to make a transcript available to her. The trial court granted the motion. Appellate rules do not require that a party who has assumed the burden of providing a court reporter at trial make available that reporter's work for a party who did not join in providing the reporter; and, in the absence of unusual circumstances, the rules do not permit a party to see how his case comes out before deciding whether to share in the reporter's fees. One who follows that course runs the risk of not having a verbatim record available. See Estate of 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Robert S. Brandt,
Davidson County Workers Compensation Panel 10/23/96
Lumbermens Mutual Casualty Insurance Company and Schering-Plough Health Care Products, Inc. v. Willie Gwen Smith
02S01-9511-CV-00110
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiffs filed suit seeking a determination that defendant is not entitled to workers' compensation benefits. They appeal from the trial court's finding that she is entitled to benefits.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. D'Army Bailey,
Shelby County Workers Compensation Panel 10/23/96
Lumbermens Mutual Casualty Insurance Company and Schering-Plough Health Care Products, Inc. v. Willie Gwen Smith
02S01-9511-CV-00110
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiffs filed suit seeking a determination that defendant is not entitled to workers' compensation benefits. They appeal from the trial court's finding that she is entitled to benefits.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. D'Army Bailey,
Shelby County Workers Compensation Panel 10/23/96
Darla Holt v. National Union Fire Ins. Co.
03S01-9601-CV-00003
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 3% permanent partial disability to the body as a whole. Defendant challenges the permanency of the injury and the methodology used by the trial judge to reach his finding. We affirm the judgment of the trial court. Plaintiff, 28, has a GED and has been trained as a certified nursing technician. Most of her work experience has been in this area. She was involved in a car accident in 1988 which eventually led to a total right hip replacement in July 1992 due to avascular necrosis. Plaintiff injured her back lifting a patient on November 7, 1993. Plaintiff was treated by Dr. Boyd D. Matthews, a chiropractor, who testified in this case by deposition. He opined that plaintiff had central disc protrusions at L4- L5 and L5-S1 based upon his examination, plaintiff's complaints and the results of various imaging studies. He assigned plaintiff a permanent impairment rating of 33% to the body as a whole. He arrived at this impairment rating by rating various impairment factors and compiling them under the AMA Guides. Dr. Robert H. Haralson, III, an orthopedic surgeon, examined the plaintiff at the request of the defendant and testified by deposition. He opined that, although plaintiff certainly had a back injury, she did not retain any permanent impairment. He acknowledged that plaintiff had protruding discs at L4 and L5; however, he opined that they did not impinge on plaintiff's nerves and that they pre- existed her back injury, based on his review of CT scans taken before and after the work- related injury. The trial judge discredited the testimony of Dr. Boyd D. Matthews. With Dr. Matthew's testimony discredited, there was no medical testimony upon which to base a medical impairment finding. The trial judge, in his ruling, found, based upon 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. John A. Turnbull,
Cumberland County Workers Compensation Panel 10/23/96
Geneva Hicks v. Emerson Motor Company
02S01-9602-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. In this appeal, the employer contends the evidence preponderates against the findings of the trial court with respect to causation and permanency. The panel finds the preponderance of the evidence to be contrary to the finding of the trial court with respect to causation. The employee or claimant, Geneva Hicks, is 45 with an eleventh grade education. She has worked at a day care center, caring for small children, in a clothing factory and as a fruit packer. She has worked in various jobs for the employer, Emerson, since 198. She has suffered from hoarseness and shortness of breath at work since about 1992, for which she has seen numerous doctors. In the course of her work for Emerson, she was exposed to various fumes. The employer has attempted to accommodate her by transfer to different departments and by the use of fans. She finally commenced this action for workers' compensation benefits for a claimed occupational disease, which she labeled allergic bronchitis. She was referred by her attorney to Dr. A. Clyde Heflin, Jr., who saw her on several occasions and opined in his deposition testimony that she was possibly having asthmatic attacks at work. The doctor was given a list of chemicals and asked and answered as follows: Q. ...(A)t this point in time, do you have an opinion, based upon a reasonable degree of medical certainty, as to what connection this lady's job place has as to her asthmatic condition? A. The list of substances that I've been supplied have numerous items which are -- and maybe we need to regress a second. The workplace environment, as far as causing asthma, you have to understand that asthma we now consider to be this hyper-reactive or irritable state of the lungs; and that is caused or generated by someone or a substance causing what we call an inflammatory condition or direct irritation of the lungs. So there is a long list of substances now known in the workplace that actually can induce asthma; and the classic one of these are TDI's, or diasocyanates, which are used in the plastics industry, for instance. The epoxy resins, which I don't see here specifically listed, but are often used in electrical manufacturing, can cause this as well. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. George R. Ellis,
Gibson County Workers Compensation Panel 10/23/96
Geneva Hicks v. Emerson Motor Company
02S01-9602-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. In this appeal, the employer contends the evidence preponderates against the findings of the trial court with respect to causation and permanency. The panel finds the preponderance of the evidence to be contrary to the finding of the trial court with respect to causation. The employee or claimant, Geneva Hicks, is 45 with an eleventh grade education. She has worked at a day care center, caring for small children, in a clothing factory and as a fruit packer. She has worked in various jobs for the employer, Emerson, since 198. She has suffered from hoarseness and shortness of breath at work since about 1992, for which she has seen numerous doctors. In the course of her work for Emerson, she was exposed to various fumes. The employer has attempted to accommodate her by transfer to different departments and by the use of fans. She finally commenced this action for workers' compensation benefits for a claimed occupational disease, which she labeled allergic bronchitis. She was referred by her attorney to Dr. A. Clyde Heflin, Jr., who saw her on several occasions and opined in his deposition testimony that she was possibly having asthmatic attacks at work. The doctor was given a list of chemicals and asked and answered as follows: Q. ...(A)t this point in time, do you have an opinion, based upon a reasonable degree of medical certainty, as to what connection this lady's job place has as to her asthmatic condition? A. The list of substances that I've been supplied have numerous items which are -- and maybe we need to regress a second. The workplace environment, as far as causing asthma, you have to understand that asthma we now consider to be this hyper-reactive or irritable state of the lungs; and that is caused or generated by someone or a substance causing what we call an inflammatory condition or direct irritation of the lungs. So there is a long list of substances now known in the workplace that actually can induce asthma; and the classic one of these are TDI's, or diasocyanates, which are used in the plastics industry, for instance. The epoxy resins, which I don't see here specifically listed, but are often used in electrical manufacturing, can cause this as well. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. George R. Ellis,
Gibson County Workers Compensation Panel 10/23/96
Insurance Company of North America v. Ronnie Storie
01S01-9602-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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The issue presented by this appeal is whether the evidence preponderates against the trial court's finding that the employee's injury was proximately caused by intoxication. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for an award of benefits. The claimant or employee, Storie, is forty-five years old and has an eighth grade education. On March 18, 1993, he reported to work at 6:3 p.m. at Kentucky Apparel to perform his usual duties as a maintenance mechanic. During the course of the shift, he needed to obtain some copper tubing and light bulbs to perform his duties. Those supplies were stored above a dropped ceiling above the maintenance office and accessible by a ladder and some loose boards. The claimant negotiated the ladder without a problem, but slipped and fell when one of the loose boards moved. He fell through the ceiling and onto a concrete floor in the men's rest room below, frightening a user, who beat a hasty exit and reported the accident. The claimant suffered multiple injuries, including a broken arm and back injury. We find in the record no direct evidence the claimant was intoxicated at the time. In fact, he had apparently performed his duties satisfactorily until the accident occurred. The injurious accident occurred shortly before 2:45 a. m. on March 19th. After some delay, he was driven to the Fentress County Hospital by a co-worker, arriving at about 3: a. m. When no doctor was available to treat his arm injury, he was transported to the Putnam County Hospital. When he arrived there at about 6:3 a. m., he smelled of alcohol and a blood alcohol test revealed an alcohol content of approximately .2 percent. The claimant insists he consumed the alcohol, retrieved from his own vehicle at the plant and provided by a friend while waiting for medical attention, after the accident, to help relieve pain associated with his injuries. The trial court disallowed the claim as being proximately caused by intoxication. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Conrad E. Troutman,
Fentress County Workers Compensation Panel 10/22/96
Robert Lively v. Textron, Inc.
01S01-9604-CH-00070
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 of findings of fact and conclusions of law. The plaintiff appeals from the trial court's finding that the permanent impairment did not result from 1992 injuries at Textron Aerostructures. Finding no error in the trial court's decision, we affirm. Dr. Wesley Coker started treating the plaintiff in March 1994 for herniated discs that were causing nerve root pressure. The plaintiff was in bad shape when he first saw him, according to Coker, as he had to be helped into the doctor's office and told the doctor about two months of excruciating pain. After switching to the care of a chiropractor, the plaintiff returned to Coker who performed surgery in June 1994. Dr. Coker testified that the plaintiff suffers a 13% whole body impairment. But Dr. Coker did not offer any testimony about what caused the plaintiff's back trouble. The issue in this case is whether the plaintiff established by a preponderance of the evidence that his impairment resulted from two injuries at Textron, one on March 5, 1992 and another on October 3, 1992. The trial court decided that the plaintiff did not prove his case, and there is ample evidence to support the decision. The plaintiff and his wife were injured in a car wreck on the way to work on the morning of February 1, 1994. The plaintiff had worked regularly before the accident, but did not work any after it. This tends to suggest that the car wreck, not the injuries years earlier, caused the back trouble Dr. Coker treated. The plaintiff called Textron following the wreck to report that he was not coming to work. The reason, he said, was that he slipped a disc in his back while -2-
Authoring Judge: Robert S. Brandt, Senior Judge
Originating Judge: Hon. Robert E. Corlew, III,
Rutherford County Workers Compensation Panel 10/22/96
Stephen Baxendale v. Universal Underwriters Insurance
01S01-9605-CH-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 appeal, the employee or claimant, Baxendale, contends (1) the award of permanent partial disability benefits is inadequate and (2) the trial court erred in computing his compensation rate. The employer and its insurer contend the trial court erred in finding the employee suffered a compensable injury by accident on June 6, 1994. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified and the judgment otherwise affirmed. The claimant is a thirty-five year old laborer with a ninth grade education. He failed a test for a GED. At the time of the claimed injury, he was earning $6.39 per hour. Beginning in October of 1992, he suffered back pain at work, but continued working while being conservatively treated for pain. At one time the treating physician assigned to him a four percent permanent whole person impairment rating. He was awarded permanent partial disability benefits based on ten percent to the body as a whole and returned to work as a laborer at the same wage rate he was earning before the injury. On June 6, 1994, he became disabled to work because of severe back pain and was diagnosed as having suffereda gradually developing ruptured disc. The doctor surgically removed the ruptured disc and estimated his permanent whole person impairment at nine percent, from appropriate guidelines. After recovering from the surgery, the claimant again returned to work at the same wage as before the disabling injury, but with significant lifting, bending, stooping and twisting restrictions. Another orthopedic surgeon evaluated the claimant and assigned a whole person impairment rating of ten percent, using different but equally appropriate guidelines. The claimant continued to suffer back pain while working as a warehouseman. Upon consideration of the above facts, the chancellor awarded permanent partial disability benefits on the basis of ten percent to the body as a whole for the June 6, 1994 injury, and fixed the claimant's compensation rate at $159.47 per week. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Irvin H. Kilcrease,
Davidson County Workers Compensation Panel 10/22/96
Anthony Neal Bates v. Cooper Industries, et al.
01S01-9604-CV-00065
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 and its insurer contend the evidence preponderates against the award of permanent partial disability benefits. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Bates, is thirty-six years old and a high school graduate. He has done nursery, construction, farming, factory and supervisory work. On September, 4, 1992, while lifting a thirty to forty pound box of coil springs to fill a customer's order, he strained his upper back. After a brief period of recuperation, during which he was treated conservatively by a neurological surgeon, he returned to work with weight lifting restrictions. On May 26, 1994, he strained his lower back in another lifting accident at work and was treated by the same doctor. The doctor again treated the claimant conservatively and returned him to work. The treating doctor and two others to whom he was referred, one an orthopedist and one a pain management specialist, assigned zero percent permanent impairment, using appropriate guidelines. The claimant was referred by his attorney or his family physician to another orthopedic surgeon, who diagnosed cervical and lumbar sprain and assigned a five to ten percent permanent whole person impairment. The disagreement is over whether the injury is in "category one" or "category two," as defined by the guidelines, which involves "a judgment call." The claimant has been terminated because the employer was unwilling to offer him a job within his lifting restrictions. A vocational expert has estimated the claimant's industrial disability at fifty-five to sixty percent. The claimant's own testimony is that he is able to work at a job not requiring repetitive or heavy lifting. The trial court awarded permanent partial disability benefits based on forty-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the evidence to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Anthony Bates,
DeKalb County Workers Compensation Panel 10/22/96
Rita Baker v. Ckr Industries, Inc.
01S01-9604-CV-00074
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 of findings of fact and conclusions of law. The plaintiff is employed by CKR Industries, a Winchester company that makes rubber windshield and door sealers for Nissan. A piece of plywood fell on her on January 4, 1993, and she filed suit alleging that as a result, she is totally, permanently disabled. The trial court found otherwise and ruled that she has no permanent disability. Because the trial court's finding is fully supported by the evidence, we affirm the decision. The minor nature of the accident is one factor supporting the trial court's decision. The four foot-by-eight foot single sheet of plywood surrounded by a metal frame was being used as a bulletin board and was standing next to where the plaintiff worked. It only fell one or two feet onto her shoulder. The plaintiff did not seek any medical treatment for several days. She never missed any work on account of the accident that she alleges left her totally and permanently disabled. She now works ten-to-twelve hours a day, five days a week. The most reliable medical evidence does not support her claim of permanent disability. He primary treating physician was Dr. Ray Fambrough, an orthopedic surgeon in Huntsville, Alabama. He diagnosed the plaintiff as having "subacromial impingement" which is nothing more than bursitis of the shoulder. Dr. Fambrough concluded that the blow to the plaintiff's shoulder did not in itself cause the bursitis, but that it exacerbated it. He testified that any impairment from the blow to the shoulder would be negligible. -2-
Authoring Judge: Robert S. Brandt, Senior Judge
Originating Judge: Hon. Thomas W. Graham,
Franklin County Workers Compensation Panel 10/22/96
Pamela D. Millsap-Fann v. Aetna Casualty & Surety Company
03S01-9605-CH-00052
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 job-related accident from which the injury and disability arose occurred April 11, 1992. The case was heard January 12, 1996 resulting in a judgment that the plaintiff had sustained a 6 percent disability to her whole body. The employer appeals and presents for review the issue of whether the award is excessive. Our standard of review is de novo on the record accompanied with a presumption of the correctness of the judgment unless the evidence otherwise preponderates. TENN. R. APP. P. 13(d); T.C.A. _ 5-6-225. The application of this standard requires this Court to weigh in more depth the findings and conclusions of the trial courts in workers' compensation cases. Corcoran v. Foster Auto GMC, 746 S.W.2d 452, 456 (Tenn. 1988). The plaintiff was involved in a traffic accident during the course of her employment as a family counselor. Her most serious injury was a broken hip which required a prosthetic replacement by Dr. Thomas L. Huddleston, an orthopedic surgeon, who testified by deposition that the plaintiff had a 37_ percent permanent partial impairment to her left leg, extrapolated to 15 percent for the whole body. The plaintiff was 42 years old at the time of trial. She has a Master's Degree in her area of discipline. She was employed by the First Tennessee Human Resources Agency in November 199 as a HomeTies specialist and, following her surgery, she returned to work with no prescribed limitations or restrictions. The proof shows a litany of physical activities in which she may engage by way of demonstrating the extent and range of her recovery and present condition, which include but are not limited to driving a car, hiking, backpacking, playing tennis and performing all normal household functions. Her discharge summary was, "Her hip was free of pain . . . . the range of motion of her hip was excellent . . . ." Her immediate supervisor testified that she was able to perform all of her duties, and the
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. G. Richard Johnson
Knox County Workers Compensation Panel 10/22/96
Ralph D. West v. Sonic Drive-In and Anco Interstate Insurance Company
01S01-9603-CH-00054
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 alleged that he injured his back on November 27, 1991 while employed as a cook. He sought medical treatment about one month later and in course was referred to Dr. Fonda Bondurant, an orthopedic surgeon in Lebanon, Tennessee, who performed a hemilaminectomy and discectomy on January 27, 1992. The surgery was successful, and the plaintiff was released to return to work on March 31, 1992. Utilizing the AMA Guidelines, Dr. Bondurant gave the plaintiff an impairment rating of eight percent "strictly because he had surgical intervention performed." This case has been twice tried. The first trial was held on April 19, 1993 and ended with a non-suit after the plaintiff and his wife testified. The second trial was held on October 4, 1994 resulting in a finding that the plaintiff had a 32 percent vocational impairment. The defendant appeals and presents for review the issues of notice, occurrence, injury and disability. An issue involving the admission of certain Social Security records is also presented. Our review is de novo on the record, accompanied with the presumption that the findings of fact of the trial court are correct unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2). At the outset, we are constrained to observe that this 38-year-old man has testified three times; once upon discovery and twice in open court. His testimony is inconsistent and obviously underwent considerable fine-tuning during the interim between trials. The Chancellor expressed his dissatisfaction with certain aspects of the case, but in the end resolved the issues of notice and injury favorably to the plaintiff, chiefly because a reputable orthopedic surgeon took a history from the plaintiff two months after the injury and performed major corrective surgery on him. In any event the Chancellor is the best judge of the credibility of the plaintiff and we 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. C.K. Smith,
Smith County Workers Compensation Panel 10/17/96
Shirley Diane Trail v. Royal Insurance Company and Ckr Industries, Inc.,
01SO1-9505-CH-00071
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. Our review is de novo on the record accompanied by the presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The trial court awarded Ms. Trail $19,421. permanent partial disability benefits, representing one-hundreed (1) weeks at the benefit rate of $194.21 per week, or twenty-five percent (25%) to the body as a whole; and future medical benefits pursuant to the Tennessee Workers' Compensation Act. The trial court also allowed attorneys fees of twenty percent (2%) of the award, in the amount of $3,884.2, to be paid in a lump sum. The Appellant contends that the trial court erred in: 1. Finding that a vocational disability based upon a permanent medical restriction, with medical testimony of no medical impairment rating in accordance with the A.M.A. Guidelines for Evaluation of Permanent Impairment, constitutes a compensable permanent partial disability under the Workers' Compensation Act. 2. Awarding permanent partial disability benefits to the Plaintiff that were excessive and against the weight of the evidence. We affirm the judgment of the trial court. Ms. Trail filed her complaint in the Chancery Court for Franklin County, Tennessee, against her employer, Defendant CKR Industries, seeking to recover unpaid benefits under the Tennessee Workers' Compensation Act for work-related injuries. Ms. Trail alleged that she suffered injuries as a result of exposure to chemicals in use at the CKR Plant. The case was consolidated with three (3) other cases for trial due to significant similarities in the cases. The opinion of the Court on the first issue is contained in the case of Angela K. Hill v. Royal Insurance Company and CKR Industries, Inc., No. 1S1-955-CH-71, filed simultaneously with this opinion. The Court held that the trial court did not err in finding that a vocational disability existed based upon the testimony of the medical experts that a permanent medical restriction existed which constitutes a permanent partial disability under the Worker's Compensation Act, even though no medical impairment rating was given by any of the
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge: Hon. Jeffrey F. Stewart
Franklin County Workers Compensation Panel 10/17/96
Kerry Alan Napier v. Cincinnati Casualty Insurance Company and North Central Telephone Cooperative
01S01-9604-CH-00063
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 is whether the award of 75 percent disability to the plaintiff's right hand is in accord with the preponderance of proof. Appellate review is confined to a review de novo on the record, accompanied by a presumption that the trial judge's findings of fact are correct unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2). A concomitant rule is that we are as enabled as the trial judge to judge the probative worth of depositional testimony. Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). The plaintiff's job with the telephone company was that of a cable splicer and repairman. During the course of his employment, he sustained a laceration to the extensor tendon of his right hand, on October 25, 1994, involving the index, middle and ring fingers, which was repaired by Dr. Keith Morrison, an orthopedic surgeon in Bowling Green, Kentucky, under whose care he remained until February 22, 1995. On that date, Dr. Morrison noted: Mr. Napier is now 4 months status post extensor tendon repair on his right hand. Four tendons repaired to the index finger, slips to the middle and ring finger on the right hand. His EXAM today shows some improvement. He still lacks full extension on the index finger by about 2dg when his wrist is brought into extension. With the wrist in the flexed position, he has full extension of the hand. He has full flexion of all the digits with his only limitation being the lack of full extension on the index finger with his wrist in the above mentioned extension position. They would like to get a second opinion for insurance reasons so we are going to see him back in 1 month. At that time he will be 5 months out. I recommend tenolysis exploration. If he is still dissatisfied with the result. Overall, he has made a big improvement, having had no active extension of the fingers on repair. He remains neurovascularly intact. Otherwise, no loss of sensation. The plaintiff was later seen, on March 15, 1995 by Dr. Stephen Pratt, a specialist in reconstructive hand surgery, because of a 3 degree lag in the index finger. Further tendon repairs were undertaken to correct the lag. Dr. Pratt testified 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge: Hon. C.K. Smith,
Macon County Workers Compensation Panel 10/17/96
Johnny Jobe v. M. K. Ferguson and Second Injury Fund
03S01-9512-CV-00131
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 award of permanent disability benefits is excessive. As discussed below, we have concluded the judgment should be modified. The employee or claimant, Jobe, was 59 years old at the time of the trial. He has a ninth grade education and is a skilled carpenter, capable of reading plans and performing supervisory duties. On May 5, 1993, he fell at work and was slightly injured, but continued to work. On August 24, of the same year, he injured his lower back while lifting a cabinet at work. He was treated by Dr. David Hauge for a herniated lumbar disc from the second injury and a herniated cervical disc, possibly from the earlier injury. Dr. Hauge assigned a permanent impairment rating of seven percent to the whole body. Dr. Berta Bergia, whom the claimant saw for an examination and evaluation, assigned permanent impairment ratings of five percent for the cervical disc and ten percent for the lumbar disc. Dr. Bergia said the claimant should not do more than sedentary work. The claimant has not returned to work. The trial judge awarded permanent partial disability benefits based on thirty percent to the body as a whole for the May 5th injury and one hundred percent for the August 24th injury. Because the combined award totaled one hundred thirty percent, the employer was ordered to pay on the basis of one hundred percent and the remaining thirty percent was assessed against the 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. James B. Scott, Jr.,
Knox County Workers Compensation Panel 10/17/96