Tennessee Administrative Office of the Courts

Workers' Compensation Opinions

Format: 07/06/2020
Format: 07/06/2020
Mark Anthony Parker v. National Surety Corporation
02S01-9601-CH-00004
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5-6-225 (e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case the first employer appeals the ruling of the trial court that the injury occurred during his term of employment with the first employer. The trial court found no second injury after April 1 and awarded benefits against the first employer. The second issue is raised by Appellant to the awarding of 4% to each arm. We affirm the findings of the trial court. The Plaintiff's carpal tunnel symptoms began in the right hand "at the beginning of the 9's." (T. at 24). The left hand became symptomatic "a year or so later." (T. P. 25). His symptoms became worse with time. (T.P. 25). "Q. . . .(t)hat you went to the doctor finally when it got so bad that you couldn't stand it. Is that correct? A. Yes, ma'am." (T. P. 39). "Q. . . .(t)hat was while you were working for the first employer? A. Yes, ma'am." (T. P. 39). The Plaintiff had a conversation with the second employer's representative a few days before the second employer became responsible and reported a work related injury while working for the first employer. (T. P. 4). The complaint here was filed alleging a February 1994 injury. The second employer took over on April 1, 1994. The employee further testified that, "Q Activities caused you to experience pain in your hands? 1
Authoring Judge: Per Curiam
Originating Judge: Mark Anthony Parker
Madison County Workers Compensation Panel 09/09/96
Jimmy Johnson v. WaUSAu Insurance Company
02S01-9601-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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Jimmy Johnson ("plaintiff") has appealed the trial court's dismissal of his suit for workers' compensation benefits on the grounds that plaintiff failed to prove that he sustained an injury arising out of and in the course and scope of his employment by preponderance of the evidence. Plaintiff was employed by Gurien Finishing Corporation ("Gurien"), who was insured by defendant, Wausau Insurance Company. For the foregoing reasons, we find no error and affirm. Plaintiff was employed at Gurien as a washer operator as part of Gurien's manufacturing process of stonewashed jeans. Plaintiff alleges that on August 1, 1993, he injured his lower back while pulling open a washer door that had been jammed with a rock. He stated that he did not report the injury at the time of the accident because it felt more like a cramp. When he woke up in pain the following morning, plaintiff testified that he reported the accident to his shift manager, Cindy Long. He stated that he advised Long that he hurt himself jerking on a washer door. Plaintiff was treated by his personal physician, Dr. Philip Sherman, on August 16, 1993. He gave Dr. Sherman a history of hurting his back while pulling machines at work. Plaintiff complained to Dr. Sherman of low back pain with some pain radiating into his legs, with the pain being worse in his left leg than his right. Dr. Sherman diagnosed pl aintiff as suffering from lumbosacral strain and prescribed pain medication. In November 1993 plaintiff returned to Dr. Sherman with compl aints of 2
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Originating Judge: Hon. William Michael Maloan
Johnson County Workers Compensation Panel 09/09/96
Jimmy Johnson v. WaUSAu Insurance Company
02S01-9601-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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Jimmy Johnson ("plaintiff") has appealed the trial court's dismissal of his suit for workers' compensation benefits on the grounds that plaintiff failed to prove that he sustained an injury arising out of and in the course and scope of his employment by preponderance of the evidence. Plaintiff was employed by Gurien Finishing Corporation ("Gurien"), who was insured by defendant, Wausau Insurance Company. For the foregoing reasons, we find no error and affirm. Plaintiff was employed at Gurien as a washer operator as part of Gurien's manufacturing process of stonewashed jeans. Plaintiff alleges that on August 1, 1993, he injured his lower back while pulling open a washer door that had been jammed with a rock. He stated that he did not report the injury at the time of the accident because it felt more like a cramp. When he woke up in pain the following morning, plaintiff testified that he reported the accident to his shift manager, Cindy Long. He stated that he advised Long that he hurt himself jerking on a washer door. Plaintiff was treated by his personal physician, Dr. Philip Sherman, on August 16, 1993. He gave Dr. Sherman a history of hurting his back while pulling machines at work. Plaintiff complained to Dr. Sherman of low back pain with some pain radiating into his legs, with the pain being worse in his left leg than his right. Dr. Sherman diagnosed pl aintiff as suffering from lumbosacral strain and prescribed pain medication. In November 1993 plaintiff returned to Dr. Sherman with compl aints of 2
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Originating Judge: Hon. William Michael Maloan,
Johnson County Workers Compensation Panel 09/09/96
John Ivory, Jr. v. Emerson Motor Company
02S01-9505-CH-00042
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 employee contends the trial court erred in: 1. Failing to assign perman ent partial disability to the right arm as opposed to the right hand; and 2. Limiting the award o f perman ent partial disab ility benefits to 55% to the right hand. We affirm the trial court in all respects. The plain tiff, John Ivo ry, Jr., ("Ivory") is 25 years o f age with an eleven th grade education. He received a G.E.D and successfully completed Job Corps training in brick masonry. His previous work experience included upholstering furniture, w orking as a construction laborer and as a produ ction line w orker at a chee se fa ctor y. On August 15, 1992, Ivory was repairing a die cast machine for Emerson Motor Company when the machine activated, injuring the fingers of his right hand. Ivory was treated by Dr. Frederick Torstrick, an orthopedic surgeon, for crush injuries to the index, long and ring fingers, fractures to the index and ring fingers, and longitudinal lacerations to the top and bottom of his hand. A later surgical procedure performed to improve movement required incisions in each of the injured fingers, the removal of adhesions between the tendon and underlying bone and cutting of some of the tissues of the capsule of the joints. Ivory was referred to a work ha rdening p rogram w here there w as some q uestion of h is coope ration. 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge: Hon. George Ellis,
Gibson County Workers Compensation Panel 09/09/96
John Ivory, Jr. v. Emerson Motor Company
02S01-9505-CH-00042
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 employee contends the trial court erred in: 1. Failing to assign perman ent partial disability to the right arm as opposed to the right hand; and 2. Limiting the award o f perman ent partial disab ility benefits to 55% to the right hand. We affirm the trial court in all respects. The plain tiff, John Ivo ry, Jr., ("Ivory") is 25 years o f age with an eleven th grade education. He received a G.E.D and successfully completed Job Corps training in brick masonry. His previous work experience included upholstering furniture, w orking as a construction laborer and as a produ ction line w orker at a chee se fa ctor y. On August 15, 1992, Ivory was repairing a die cast machine for Emerson Motor Company when the machine activated, injuring the fingers of his right hand. Ivory was treated by Dr. Frederick Torstrick, an orthopedic surgeon, for crush injuries to the index, long and ring fingers, fractures to the index and ring fingers, and longitudinal lacerations to the top and bottom of his hand. A later surgical procedure performed to improve movement required incisions in each of the injured fingers, the removal of adhesions between the tendon and underlying bone and cutting of some of the tissues of the capsule of the joints. Ivory was referred to a work ha rdening p rogram w here there w as some q uestion of h is coope ration. 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge: Hon. George Ellis,
Gibson County Workers Compensation Panel 09/09/96
Charles E . Carey v. Carolina Freight Carriers
02S01-9506-CH-00050
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. In its appeal, the employer contends that the evidence does not support the trial court's award of seventy percent (7%) to the lower extremity and that the trial court erred in computing the employee's average weekly wage at $273. instead of $22.21 per week. The panel concludes that the evidence preponderates against the trial court's assessment of permanent disability and modifies th e award to thirty-five percen t (35%) to the lower e xtremity. Prope rly computed, the employee's average weekly wage is $22.21 per week. Charles E. Carey ("Carey") was injured on December 27, 1991, when a bank vault weighing five hundred pounds fell off a fork lift and struck the front part of his left thigh. He was initially treated by Dr. R. Michael Cobb, an orthopedic surgeon, who suspected a torn ligament in Carey's knee. Dr. Cobb later concluded, however, that the ligament was not torn and that surgery was not needed. In February, 1992, Carey began to complain of numbness in his toes, although Dr. Cobb was unable to find any indication of injury to the sciatic nerve, which provides feeling to the toes. Carey was given a note to return to work on March 1, 1992. Upon examination on March 16, 1992, Carey's range of motion was excellent and his strength appeared to be normal. He advised Dr. Cobb that he was hav ing no pro blem at w ork. A ne rve cond uction study, pe rformed as a result of the c ompla ints of to e num bness, s howe d no sig n of inju ry to the sc iatic nerv e. Carey was given no permanent physical anatomical impairment and was discharged from Dr. Cobb's care on March 16, 1992. When he returned to work in March, Carey performed the same duties that 2
Authoring Judge: Janice M. Holder, Judge
Originating Judge: Hon. Joe C. Morris,
Madison County Workers Compensation Panel 09/09/96
Charles E . Carey v. Carolina Freight Carriers
02S01-9506-CH-00050
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. In its appeal, the employer contends that the evidence does not support the trial court's award of seventy percent (7%) to the lower extremity and that the trial court erred in computing the employee's average weekly wage at $273. instead of $22.21 per week. The panel concludes that the evidence preponderates against the trial court's assessment of permanent disability and modifies th e award to thirty-five percen t (35%) to the lower e xtremity. Prope rly computed, the employee's average weekly wage is $22.21 per week. Charles E. Carey ("Carey") was injured on December 27, 1991, when a bank vault weighing five hundred pounds fell off a fork lift and struck the front part of his left thigh. He was initially treated by Dr. R. Michael Cobb, an orthopedic surgeon, who suspected a torn ligament in Carey's knee. Dr. Cobb later concluded, however, that the ligament was not torn and that surgery was not needed. In February, 1992, Carey began to complain of numbness in his toes, although Dr. Cobb was unable to find any indication of injury to the sciatic nerve, which provides feeling to the toes. Carey was given a note to return to work on March 1, 1992. Upon examination on March 16, 1992, Carey's range of motion was excellent and his strength appeared to be normal. He advised Dr. Cobb that he was hav ing no pro blem at w ork. A ne rve cond uction study, pe rformed as a result of the c ompla ints of to e num bness, s howe d no sig n of inju ry to the sc iatic nerv e. Carey was given no permanent physical anatomical impairment and was discharged from Dr. Cobb's care on March 16, 1992. When he returned to work in March, Carey performed the same duties that 2
Authoring Judge: Janice M. Holder, Judge
Originating Judge: Hon. Joe C. Morris,
Madison County Workers Compensation Panel 09/09/96
Mart E. Kobeck v. Murray, Inc.
01S01-9511-CV-00207
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 injured his neck at work in October of 1991 and subsequently underwent anterior cervical disc removal, dissection and fusion after which he did not recover. The trial judge found the plaintiff to be 8 percent vocationally impaired as a result of his work injury. We affirm the judgment of the trial court. Plaintiff had worked for Murray, Inc. for 35 years when, on October 21, 1991, he injured his neck on the job while working overhead repairing lawn mowers. The company sent him to see Dr. Norman Henderson, who then referred him to Dr. Rex Arendall, neurosurgeon, on April 1, 1992. Dr. Arendall diagnosed cervico-thoracic radiculopathy and prescribed physical therapy and pain medications, but plaintiff did not improve. On April 23, 1992, Dr. Arendall performed anterior cervical discectomy, anterior cervical fusion and microscopic dissection at C4-5 and C5-6. Post-operatively, plaintiff continued to have increasing pain and weakness in his right arm and shoulder. He also developed loss of balance. Dr. Arendall re-admitted plaintiff for investigation of the continuing symptoms, and MRI of the brain then revealed small areas of infarction. Dr. Arendall referred plaintiff to his medical practice partner and neurologist, Dr. Mary Clinton, for a second opinion, and then to another neurologist, a Dr. Rubinowicz. Neither examiner could find a neurological basis for plaintiff's problems except for the brain infarctions. Dr. Arendall stated that after the second hospitalization, plaintiff "seemed to go progressively downhill." His right arm and hand atrophied. Dr. Arendall thought that plaintiff might be exhibiting early onset symptoms of amyotrophic lateral sclerosis or multiple sclerosis, but there were no objective findings to indicate either disease. On October 21, 1992, Dr. Arendall saw the patient and opined that he was totally and permanently disabled as a result of his medical problems. He opined that 15 percent of the disability was "purely for his work-related findings." Plaintiff testified that for many years prior to his accident, he had worked without missing a day and that he had no prior medical problems that required him to 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. James L. Weatherford
Lawrence County Workers Compensation Panel 09/05/96
Mart E. Kobeck v. Murray, Inc.
01S01-9511-CV-00207
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 injured his neck at work in October of 1991 and subsequently underwent anterior cervical disc removal, dissection and fusion after which he did not recover. The trial judge found the plaintiff to be 8 percent vocationally impaired as a result of his work injury. We affirm the judgment of the trial court. Plaintiff had worked for Murray, Inc. for 35 years when, on October 21, 1991, he injured his neck on the job while working overhead repairing lawn mowers. The company sent him to see Dr. Norman Henderson, who then referred him to Dr. Rex Arendall, neurosurgeon, on April 1, 1992. Dr. Arendall diagnosed cervico-thoracic radiculopathy and prescribed physical therapy and pain medications, but plaintiff did not improve. On April 23, 1992, Dr. Arendall performed anterior cervical discectomy, anterior cervical fusion and microscopic dissection at C4-5 and C5-6. Post-operatively, plaintiff continued to have increasing pain and weakness in his right arm and shoulder. He also developed loss of balance. Dr. Arendall re-admitted plaintiff for investigation of the continuing symptoms, and MRI of the brain then revealed small areas of infarction. Dr. Arendall referred plaintiff to his medical practice partner and neurologist, Dr. Mary Clinton, for a second opinion, and then to another neurologist, a Dr. Rubinowicz. Neither examiner could find a neurological basis for plaintiff's problems except for the brain infarctions. Dr. Arendall stated that after the second hospitalization, plaintiff "seemed to go progressively downhill." His right arm and hand atrophied. Dr. Arendall thought that plaintiff might be exhibiting early onset symptoms of amyotrophic lateral sclerosis or multiple sclerosis, but there were no objective findings to indicate either disease. On October 21, 1992, Dr. Arendall saw the patient and opined that he was totally and permanently disabled as a result of his medical problems. He opined that 15 percent of the disability was "purely for his work-related findings." Plaintiff testified that for many years prior to his accident, he had worked without missing a day and that he had no prior medical problems that required him to 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. James L. Weatherford
Lawrence County Workers Compensation Panel 09/05/96
Frances Reynolds Kellerman v. Food Lion, Inc.
01S01-9512-CH-00226
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends (1) the chancellor erred in not accepting the opinion testimony ofthe claimant's treating physician, (2) the claimant's back injury is not compensable because the evidence failed to establish that "the accident either otherwise injured her or advanced the severity of her preexisting condition, (3) that the chancellor erred in considering expert medical testimony not based on reasonable medical certainty, and (4) the award of permanent partial disability benefits is excessive. The panel concludes that the evidence fails to preponderate against the findings of the trial court. The judgment is modified as provided herein. On November 29, 1993, the claimant, Kellerman, slipped and fell in a puddle of water at work, twisting her right knee and injuring her back. She was eventually referred to Dr. Richard Bagby, who saw her on January 13, 1994 and January 2, 1994. Dr. Bagby ordered a CT scan and studied the results. He opined that the claimant reached maximum medical improvement on January 24, 1994, when she was released to return to work with some minor restrictions. The doctor further opined that she would not retain any permanent impairment. We do not find in the record the degree of certainty upon which the doctor's opinion was based. The claimant returned to Dr. Bagby on March 1, 1994, when he noted her continuing pain but did not change her restrictions from lifting more than twenty pounds or any repetitive bending, or assess any permanent impairment. The claimant was referred to Dr. Keith Brown for examination and evaluation. Dr. Brown performed additional testing which put stress on her knee and back. From his examination, particularly a positive McMurray's test, this doctor diagnosed a torn medial meniscus in the right knee joint, which, if not treated, will worsen, he said. He assigned a permanent impairment rating of five percent to the right leg, using AMA Guidelines, and added restriction from any kneeling or stooping activities. Dr. Brown further opined that the claimant's disabling back pain was permanent and causally related to the injury at work. He diagnosed circumferential disc disorder which, he said, may or may not have preexisted that injury but was aggravated by the injury, and assigned an additional permanent impairment of ten percent to the whole person, from AMA Guidelines. His testimony included the following question and answer: Q. In the opinions you have expressed, have they been based on a reasonable degree of medical certainty? 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Jeffrey F. Stewart,
Franklin County Workers Compensation Panel 09/05/96
Frances Reynolds Kellerman v. Food Lion, Inc.
01S01-9512-CH-00226
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends (1) the chancellor erred in not accepting the opinion testimony ofthe claimant's treating physician, (2) the claimant's back injury is not compensable because the evidence failed to establish that "the accident either otherwise injured her or advanced the severity of her preexisting condition, (3) that the chancellor erred in considering expert medical testimony not based on reasonable medical certainty, and (4) the award of permanent partial disability benefits is excessive. The panel concludes that the evidence fails to preponderate against the findings of the trial court. The judgment is modified as provided herein. On November 29, 1993, the claimant, Kellerman, slipped and fell in a puddle of water at work, twisting her right knee and injuring her back. She was eventually referred to Dr. Richard Bagby, who saw her on January 13, 1994 and January 2, 1994. Dr. Bagby ordered a CT scan and studied the results. He opined that the claimant reached maximum medical improvement on January 24, 1994, when she was released to return to work with some minor restrictions. The doctor further opined that she would not retain any permanent impairment. We do not find in the record the degree of certainty upon which the doctor's opinion was based. The claimant returned to Dr. Bagby on March 1, 1994, when he noted her continuing pain but did not change her restrictions from lifting more than twenty pounds or any repetitive bending, or assess any permanent impairment. The claimant was referred to Dr. Keith Brown for examination and evaluation. Dr. Brown performed additional testing which put stress on her knee and back. From his examination, particularly a positive McMurray's test, this doctor diagnosed a torn medial meniscus in the right knee joint, which, if not treated, will worsen, he said. He assigned a permanent impairment rating of five percent to the right leg, using AMA Guidelines, and added restriction from any kneeling or stooping activities. Dr. Brown further opined that the claimant's disabling back pain was permanent and causally related to the injury at work. He diagnosed circumferential disc disorder which, he said, may or may not have preexisted that injury but was aggravated by the injury, and assigned an additional permanent impairment of ten percent to the whole person, from AMA Guidelines. His testimony included the following question and answer: Q. In the opinions you have expressed, have they been based on a reasonable degree of medical certainty? 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Jeffrey F. Stewart,
Franklin County Workers Compensation Panel 09/05/96
Woodrow Cecil Foster v. Coffee County Highway Department and Coffee County, Tennessee
01S01-9512-CH-00232
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 questions the trial court's conclusion that the claim is not barred by Tenn. Code Ann. section 5- 6- 23, a one year statute of limitation. The employer also contends the award of permanent partial disability benefits based on forty-five percent to the body as a whole is excessive. This panel finds that the judgment should be affirmed. The action was commencedby the employee or claimant, Woodrow C. Foster, by the filing of a complaint on March 6, 1991, against the employer, Coffee County Highway Department and Coffee County, Tennessee, seeking workers' compensation benefits for injuries occurring in 1986 and 1987. The defendants served an answer raising the affirmative defense that the claim was barred by the above statute of limitation. Our 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) (1992). We accept the chancellor's relevant findings of fact as follows: "The plaintiff was a 59 year old male with a tenth grade education who, for the most part, had spent his adult life either driving a truck or loading and unloading a truck with short periods of employment as a carpenter's helper and working at a service station. Mr. Foster testified that in March, 1986, while changing a flat tire, he thought he 'broke his back,' that he went to a doctor who put a corset on him for two weeks and told him he had a 'pulled muscle.' Plaintiff went back to work and testified that he thought (the 'pulled muscle') was the only condition for which he suffered any discomfort. Plaintiff testified that in 199 he saw a doctor because his back continued to hurt. He saw Dr. Robison and Dr. Jekot, who asked him to return for another appointment but he did not let him return to work without seeing a neurosurgeon. He went to see Dr. Verne Allen...(who) performed an MRI that showed a bulging disc...(for which) he ultimately had surgery.... Plaintiff testified that he went back to work after surgery. He was off work approximately two months, but despite being given no restrictions as a result of the surgery he has constant pain out of the left side of his back and down his leg, that he presently takes steroids and walks to try to stay limber although he continues to hurt. Plaintiff testified that he continues to try to perform his job as a truck driver with the defendant Highway Department." An action by an employee to recover workers' compensation benefits for an accidental injury must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. section 5-6-224(1). However, if within such one year period the employer or its insurer makes voluntary payment of benefits, the action may be commenced within one year after the cessation of benefits. Tenn. Code Ann. section 5-6-23. 2
Authoring Judge: Joe C. Loser, Jr., Retired Judge
Originating Judge: Hon. John W. Rollins,
Coffee County Workers Compensation Panel 09/05/96
Woodrow Cecil Foster v. Coffee County Highway Department and Coffee County, Tennessee
01S01-9512-CH-00232
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 questions the trial court's conclusion that the claim is not barred by Tenn. Code Ann. section 5- 6- 23, a one year statute of limitation. The employer also contends the award of permanent partial disability benefits based on forty-five percent to the body as a whole is excessive. This panel finds that the judgment should be affirmed. The action was commencedby the employee or claimant, Woodrow C. Foster, by the filing of a complaint on March 6, 1991, against the employer, Coffee County Highway Department and Coffee County, Tennessee, seeking workers' compensation benefits for injuries occurring in 1986 and 1987. The defendants served an answer raising the affirmative defense that the claim was barred by the above statute of limitation. Our 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) (1992). We accept the chancellor's relevant findings of fact as follows: "The plaintiff was a 59 year old male with a tenth grade education who, for the most part, had spent his adult life either driving a truck or loading and unloading a truck with short periods of employment as a carpenter's helper and working at a service station. Mr. Foster testified that in March, 1986, while changing a flat tire, he thought he 'broke his back,' that he went to a doctor who put a corset on him for two weeks and told him he had a 'pulled muscle.' Plaintiff went back to work and testified that he thought (the 'pulled muscle') was the only condition for which he suffered any discomfort. Plaintiff testified that in 199 he saw a doctor because his back continued to hurt. He saw Dr. Robison and Dr. Jekot, who asked him to return for another appointment but he did not let him return to work without seeing a neurosurgeon. He went to see Dr. Verne Allen...(who) performed an MRI that showed a bulging disc...(for which) he ultimately had surgery.... Plaintiff testified that he went back to work after surgery. He was off work approximately two months, but despite being given no restrictions as a result of the surgery he has constant pain out of the left side of his back and down his leg, that he presently takes steroids and walks to try to stay limber although he continues to hurt. Plaintiff testified that he continues to try to perform his job as a truck driver with the defendant Highway Department." An action by an employee to recover workers' compensation benefits for an accidental injury must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. section 5-6-224(1). However, if within such one year period the employer or its insurer makes voluntary payment of benefits, the action may be commenced within one year after the cessation of benefits. Tenn. Code Ann. section 5-6-23. 2
Authoring Judge: Joe C. Loser, Jr., Retired Judge
Originating Judge: Hon. John W. Rollins,
Coffee County Workers Compensation Panel 09/05/96
Gary Allen Ferrell v. Batesville Casket Company
01S01-9512-CV-00218
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 dismissed the plaintiff's complaint as barred by the statute of limitations. The plaintiff appeals this ruling. We affirm the judgment of the trial court. Plaintiff reported problems with swelling, pain and numbness in his right arm to his supervisor in June or July 1991. These problems occurred after using a pneumatic sander at work which plaintiff alleged was defective. He went to the company doctor about a week after he reported these problems to his employer. The company doctor advised him that his problems with his right arm were the result of his use of the pneumatic sander and further advised him to forever avoid using vibrating tools with his right hand. Plaintiff continued to have the same problems with his right arm and experienced exacerbations of his pain whenever he used a vibrating tool. He continued to see physicians, by referral from defendants and on his own. No proof was offered as to whether the defendants had paid any medical expenses for the plaintiff in relation to his alleged injury within a year of his filing this complaint in March 21, 1994. The trial judge held that there was no question in the court's mind that the plaintiff had known since June/July 1991 that he had a work-related injury and that the action was dismissed as barred by the statute of limitations. Our review is de novo on the record, accompanied by the presumption that the factual findings of the trial court are correct. TENN. CODE ANN. _ 5-6-225 (e)(2). TENN. CODE ANN. _ 5-6-23 provides: The right to compensation under the Workers' Compensation Law shall be forever barred, unless within one (1) year after the accident resulting in injury . . . occurred the notice required by _ 5-6-22 is given the employer and a claim for compensation under the provisions of this chapter is filed with the tribunal having jurisdiction to hear and determine the matter; provided, that if 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. Gerald L. Ewell, Sr., Judge
Coffee County Workers Compensation Panel 09/05/96
Gary Allen Ferrell v. Batesville Casket Company
01S01-9512-CV-00218
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 dismissed the plaintiff's complaint as barred by the statute of limitations. The plaintiff appeals this ruling. We affirm the judgment of the trial court. Plaintiff reported problems with swelling, pain and numbness in his right arm to his supervisor in June or July 1991. These problems occurred after using a pneumatic sander at work which plaintiff alleged was defective. He went to the company doctor about a week after he reported these problems to his employer. The company doctor advised him that his problems with his right arm were the result of his use of the pneumatic sander and further advised him to forever avoid using vibrating tools with his right hand. Plaintiff continued to have the same problems with his right arm and experienced exacerbations of his pain whenever he used a vibrating tool. He continued to see physicians, by referral from defendants and on his own. No proof was offered as to whether the defendants had paid any medical expenses for the plaintiff in relation to his alleged injury within a year of his filing this complaint in March 21, 1994. The trial judge held that there was no question in the court's mind that the plaintiff had known since June/July 1991 that he had a work-related injury and that the action was dismissed as barred by the statute of limitations. Our review is de novo on the record, accompanied by the presumption that the factual findings of the trial court are correct. TENN. CODE ANN. _ 5-6-225 (e)(2). TENN. CODE ANN. _ 5-6-23 provides: The right to compensation under the Workers' Compensation Law shall be forever barred, unless within one (1) year after the accident resulting in injury . . . occurred the notice required by _ 5-6-22 is given the employer and a claim for compensation under the provisions of this chapter is filed with the tribunal having jurisdiction to hear and determine the matter; provided, that if 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. Gerald L. Ewell, Sr.
Coffee County Workers Compensation Panel 09/05/96
Blanche Rene Smith v. Bruce Hardwood Floors
02S01-9512-CH-00130
This case is before the Court upon a motion for review purAppellate suant to C ourt Tenn.Clerk Code Ann. _ 5-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference; Whereupon, it appears to the Court that the motion for review is not well- taken and should be denied; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by the plaintiff-appellee, for which execution may issue if necessary.
Authoring Judge: Per Curiam
Originating Judge: Hon. Joe C. Morris, Chancellor
Smith County Workers Compensation Panel 08/30/96
Debra Michelle Lambert v. Famous Hospitality, Inc.
02S01-9511-CV-00112
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff was working at Bruce Hardwood Floors when she injured her right shoulder in October of 1991 while lifting pieces of wood from a conveyor belt. In May of 1992, she complained to her treating physician of pain in her hands and wrists. She alleged work-related permanent disability as a result of these conditions. The trial court awarded plaintiff 33 percent permanent partial disability to each arm. We find the plaintiff has failed to meet her burden of proving permanent partial disability and therefore reverse the decision of the trial court and dismiss the complaint. Plaintiff testified that she was removing thin or short wood from a conveyor belt and lifting 4 to 5 pounds frequently when her right shoulder started bothering her, sometime in October or before October. The employer referred her to Convenient Care Clinic, then referred her to Dr. Alan Pechacek, board-certified orthopedic surgeon, at Jackson Clinic. Dr. Pechacek's examination and x-ray on November 11, 1991 gave him the impression that plaintiff's right shoulder pain was due to some irritation or inflammation of the rotator cuff tendons. He prescribed physical therapy, exercises, pain medication and work restrictions, which improved plaintiff's condition. In January of 1992, Dr. Pechacek told plaintiff she could return to full work with no restrictions. He continued to see her for renewal of prescriptions but felt she was "basically functional, as far as being able to do her job." In May of 1992, plaintiff returned to Dr. Pechacek complaining of shoulder pain and also bilateral wrist and hand pain and numbness. She said this bothered her both at work and at home at night. At her June, 1992 office visit, Dr. Pechacek stated that plaintiff's symptoms were "mild and vague," and he gave her splints to wear on her wrists. She was no longer working because of some dispute with her employer, and he thought she could control her hand activity at home. In July 1992, she returned still complaining of discomfort, so Dr. Pechacek ordered nerve conduction studies, which showed mild changes in the median nerve 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. Joe C. Morris
Smith County Workers Compensation Panel 08/30/96
Reba Joyce Moody v. Phelps Security, Inc. and Fidelity and Casualty Co. of New York
02501-9509-CV-00080
This workers' compensation appeal has been referred to the Special W ork ers ' C om pe ns atio n A pp ea ls P an el of the Su pre m e C ou rt in acc ord an ce with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep ort ing of fin din gs of fa ct a nd co nc lus ion s o f law . Suit was filed in the Circuit Court at Memphis b y Re ba Joyce Moody as representative of the estate of her deceased h usband, James Jun ior Mo ody, against Phelps Security, Inc., the employer, and Fid elity and Ca sualty Co. of New Y ork, the em ployer's workers' comp ensation insurance carrier. The plaintiff sued for workers' compensation benefits as a result of an accidental injury tha t alle ge dly caused th e d ea th o f Jam es Jun ior M oo dy, in clud ing a po rtion o f the medical ex pe ns es inc urr ed . T he de fen da nts filed an an sw er a dm ittin g that Jam es Jun ior M oo dy s us taine d a ccid en tal inju ries g row ing o ut o f and in the cou rse of h is em ploy m en t, but they denied that these injuries resulted in the de ath of Ja m es Jun ior M oo dy. The answ er also stated that the insurance carrier had paid that portion of the medical expenses which w ere rela ted to th e in jurie s s us tain ed by James Junior Moody on or a bo ut N ov em be r 7, 1 99 2, th e d ate of th e a ccid en t. The de fen da nts filed a suggestion of death showing that Reba Joyce Moody, Administratrix, died on September 19, 1 994. James Moo dy and Deborah Ann Wolfe were appointed as successor Co - Administrators of the estate. The trial judge found in fav or o f the plain tiff and aw ard ed w ee kly be ne fits from the date of the death of the deceased on January 13, 1993 to the widow's death on September 19, 1994. The total medical expenses owing was Two Hundred and Fifty-Seven Thousand, Three 2
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge: Hon. Robert A. Lanier, Judge
Shelby County Workers Compensation Panel 08/30/96
Reba Joyce Moody v. Phelps Security, Inc. and Fidelity and Casualty Co. of New York
02501-9509-CV-00080
This workers' compensation appeal has been referred to the Special W ork ers ' C om pe ns atio n A pp ea ls P an el of the Su pre m e C ou rt in acc ord an ce with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep ort ing of fin din gs of fa ct a nd co nc lus ion s o f law . Suit was filed in the Circuit Court at Memphis b y Re ba Joyce Moody as representative of the estate of her deceased h usband, James Jun ior Mo ody, against Phelps Security, Inc., the employer, and Fid elity and Ca sualty Co. of New Y ork, the em ployer's workers' comp ensation insurance carrier. The plaintiff sued for workers' compensation benefits as a result of an accidental injury tha t alle ge dly caused th e d ea th o f Jam es Jun ior M oo dy, in clud ing a po rtion o f the medical ex pe ns es inc urr ed . T he de fen da nts filed an an sw er a dm ittin g that Jam es Jun ior M oo dy s us taine d a ccid en tal inju ries g row ing o ut o f and in the cou rse of h is em ploy m en t, but they denied that these injuries resulted in the de ath of Ja m es Jun ior M oo dy. The answ er also stated that the insurance carrier had paid that portion of the medical expenses which w ere rela ted to th e in jurie s s us tain ed by James Junior Moody on or a bo ut N ov em be r 7, 1 99 2, th e d ate of th e a ccid en t. The de fen da nts filed a suggestion of death showing that Reba Joyce Moody, Administratrix, died on September 19, 1 994. James Moo dy and Deborah Ann Wolfe were appointed as successor Co - Administrators of the estate. The trial judge found in fav or o f the plain tiff and aw ard ed w ee kly be ne fits from the date of the death of the deceased on January 13, 1993 to the widow's death on September 19, 1994. The total medical expenses owing was Two Hundred and Fifty-Seven Thousand, Three 2
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge: Hon. Robert A. Lanier, Judge
Shelby County Workers Compensation Panel 08/30/96
Christine Callahan v. Patrick Michael Callahan
03A01-9603-CV-00116
Authoring Judge: Don T. Mcmurray
Originating Judge: Hon. BILL SWAN, JUDGE
Knox County Workers Compensation Panel 08/30/96
Joe Boatman v. Ww of Memphis, Inc.
02S01-9508-CV-00065
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. James E. Swearengen
Shelby County Workers Compensation Panel 08/28/96
Sandra Whitehead v. Express Services, Inc.
02S01-9511-CH-00118
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, Express Services, contends the trial court's award of permanent partial disability benefits on the basis of eighty percent permanent partial disability to the left arm is excessive. The panel has concluded that the award should be modified to provide permanent partial disability benefits on the basis of fifty percent to the left arm. At the time of the trial, the claimant, Sandra Whitehead, was thirty- five years old and had a GED. She has worked on an assembly line and as a sewing machine operator. She began working for the employer as a temporary employee on June 22, 1994. On July 1, 1994, she accidentally cut her left wrist while opening boxes with a box cutter. She was first referred to Dr. Charles Stewart, who diagnosed a laceration of the left wrist. He sutured the laceration, but later referred her to Dr. Anthony Segal, a neurosurgeon, when she continued to complain. Dr. Segal conducted nerveconduction studies and found mild nerve damage and possible reflex dystrophy. Dr. Segal testified by deposition but assigned no permanent impairment. The claimant went toDr. James Varner, an orthopedic surgeon. Dr. Varner diagnosed a partial sensory nerve laceration of the median nerve and reflex dystrophy syndrome. He treated her condition with medication, physical therapy and a stellate block, and assessed a permanent anatomical impairment of fifteen percent to the left arm. The doctor advised her to avoid repetitive use of the left arm, but said she could perform jobs that did not require such repetitive use. He said she was not impaired from pronating and supinating her wrist. A physical therapist testified that functional capacity evaluation tests were invalid because the claimant refused to exert maximum effort. The claimant testified that her arm stays cold all the time and that she is unable to perform household chores such as twisting caps from jars and opening doors. The trial court awarded permanent partial disability benefits on the basis of eighty percent to the left arm. Appellate review 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. section 5-6- 225(e)(2). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Dewey C. Whitenton
White County Workers Compensation Panel 08/28/96
Sandra Whitehead v. Express Services, Inc.
02S01-9511-CH-00118
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, Express Services, contends the trial court's award of permanent partial disability benefits on the basis of eighty percent permanent partial disability to the left arm is excessive. The panel has concluded that the award should be modified to provide permanent partial disability benefits on the basis of fifty percent to the left arm. At the time of the trial, the claimant, Sandra Whitehead, was thirty- five years old and had a GED. She has worked on an assembly line and as a sewing machine operator. She began working for the employer as a temporary employee on June 22, 1994. On July 1, 1994, she accidentally cut her left wrist while opening boxes with a box cutter. She was first referred to Dr. Charles Stewart, who diagnosed a laceration of the left wrist. He sutured the laceration, but later referred her to Dr. Anthony Segal, a neurosurgeon, when she continued to complain. Dr. Segal conducted nerveconduction studies and found mild nerve damage and possible reflex dystrophy. Dr. Segal testified by deposition but assigned no permanent impairment. The claimant went toDr. James Varner, an orthopedic surgeon. Dr. Varner diagnosed a partial sensory nerve laceration of the median nerve and reflex dystrophy syndrome. He treated her condition with medication, physical therapy and a stellate block, and assessed a permanent anatomical impairment of fifteen percent to the left arm. The doctor advised her to avoid repetitive use of the left arm, but said she could perform jobs that did not require such repetitive use. He said she was not impaired from pronating and supinating her wrist. A physical therapist testified that functional capacity evaluation tests were invalid because the claimant refused to exert maximum effort. The claimant testified that her arm stays cold all the time and that she is unable to perform household chores such as twisting caps from jars and opening doors. The trial court awarded permanent partial disability benefits on the basis of eighty percent to the left arm. Appellate review 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. section 5-6- 225(e)(2). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Dewey C. Whitenton
White County Workers Compensation Panel 08/28/96
Jimmy Mccarver v. Tecumseh Products Company
02S01-9512-CV-00124
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, Tecumseh, contends that the evidence preponderates against the trial court's finding that the employee's disability arose out of the employment. The panel agrees. On October 1, 1993, the employee or claimant, McCarver, while working for the employer, bumped his leg against a metal container and felt immediate pain. He was referred to a doctor, who diagnosed a bruised leg and arthritis. When the pain persisted, the claimant was referred to another doctor, who made a similar diagnosis. The claimant testified that he has difficulty standing, walking, squatting, sitting and sleeping that he did not have before the accident, and that he is no longer able to work. His condition interferes with his hunting and fishing. Doctors have determined that he has degenerative joint disease and synovitis of the left knee. There is no medical evidence that his condition is causally connected to the work-related accident of October 1, 1993. The trial court awarded permanent partial disability benefits on the basis of seventy-five percent to the left leg. 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 is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Unless admitted by the employer, the employee has the burden of proving, by competent evidence, every essential element of his claim. Mazanec v. Aetna Ins. Co., 491 S.W.2d 616 (Tenn. 1973). He must prove, among other things, that his injury arose out of his employment. In order to establish that an injury was one arising out of the employment, the cause of the injury must be proved. In all but the most obvious cases, causation may only be established by expert medical testimony. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). In the present case, there simply is no medical evidence either that the accident at work caused the injury or that it aggravated a pre-existing condition, causing the disability. Moreover, the causal connection is not obvious from the circumstances. We therefore find that the evidence preponderates against any award of permanent disability benefits. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Julian P. Guinn,
Henry County Workers Compensation Panel 08/28/96
Jimmy Mccarver v. Tecumseh Products Company
02S01-9512-CV-00124
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, Tecumseh, contends that the evidence preponderates against the trial court's finding that the employee's disability arose out of the employment. The panel agrees. On October 1, 1993, the employee or claimant, McCarver, while working for the employer, bumped his leg against a metal container and felt immediate pain. He was referred to a doctor, who diagnosed a bruised leg and arthritis. When the pain persisted, the claimant was referred to another doctor, who made a similar diagnosis. The claimant testified that he has difficulty standing, walking, squatting, sitting and sleeping that he did not have before the accident, and that he is no longer able to work. His condition interferes with his hunting and fishing. Doctors have determined that he has degenerative joint disease and synovitis of the left knee. There is no medical evidence that his condition is causally connected to the work-related accident of October 1, 1993. The trial court awarded permanent partial disability benefits on the basis of seventy-five percent to the left leg. 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 is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Unless admitted by the employer, the employee has the burden of proving, by competent evidence, every essential element of his claim. Mazanec v. Aetna Ins. Co., 491 S.W.2d 616 (Tenn. 1973). He must prove, among other things, that his injury arose out of his employment. In order to establish that an injury was one arising out of the employment, the cause of the injury must be proved. In all but the most obvious cases, causation may only be established by expert medical testimony. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). In the present case, there simply is no medical evidence either that the accident at work caused the injury or that it aggravated a pre-existing condition, causing the disability. Moreover, the causal connection is not obvious from the circumstances. We therefore find that the evidence preponderates against any award of permanent disability benefits. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. Julian P. Guinn,
Henry County Workers Compensation Panel 08/28/96