Tennessee Administrative Office of the Courts

Workers' Compensation Opinions

Format: 07/06/2020
Format: 07/06/2020
Joe Boatman v. Ww of Memphis, Inc. D/B/A. Advance Muffler & Auto Service and Amerisure Insurance Company
02S01-9508-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. _ 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 5% permanent partial disability to each arm. Defendant challenges 1) the finding of permanent vocational disability to the right arm and 2) the finding of 5% permanent partial disability to each arm. We affirm the judgment of the trial court. Plaintiff, 54 at the time of trial, has a high school degree and some college education, sufficient at least to be certified as a junior high school shop teacher in Texas. He taught for about two years. He has also been certified in mechanics by a vocational-technical school in Memphis. His work history includes work as a military supply clerk, factory worker, supervisor of inmates and of youths in juvenile detention and mechanic. Plaintiff worked for defendant-employer as an installer of brakes and mufflers and as a manager. On November 4, 1992, he slipped on some oil while guiding a car into the shop and fell into the pit, about eight feet down, head first. He tried to catch himself with his hands. Dr. Phillip Wright, an orthopedic surgeon, testified by deposition. He testified that plaintiff was diagnosed with a fracture of the left radial styloid (in the wrist), a fracture of the proximal phalanx of the left thumb and carpal tunnel syndrome in his right arm. Surgery was performed and a pin was temporarily placed in his left wrist. Plaintiff was given a splint for his right wrist and, in March 1993, was given a cortisone shot. After the shot, Dr. Wright did not testify to any complaints by plaintiff concerning his right arm. Dr. Wright assigned ten percent permanent impairment to the plaintiff's left upper extremity. He testified that, if plaintiff continued to have the same symptoms in his right arm, plaintiff would have a ten percent impairment to his right upper extremity. 2
Authoring Judge: John K. Byers, Senior Judg
Originating Judge: Hon. James E. Swearengen
Shelby County Workers Compensation Panel 08/28/96
Autto Lee Taylor, Sr. v. Bailey-Parks Urethane, Inc.,
02S01-9602-CV-00018
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 appeal the employer contends no notice was given and causation was not proven. The trial judge found proper notice and a work-related injury. This panel affirms the judgment of the trial judge. The Plaintiff testified, "A. I told him about it. He just sat there and looked at me. He didn't say nothing. Q. What did you tell him? A. I told him I hurt my back Friday. I needed to go to the doctor. Q. Did Mr. Tutor ask you any questions at that time? A. He asked me where I hurt my back. I said here at the job." (App. P. 28). Mr. Tutor testified, ". . .He had come to evidently Larry, which is his supervisor. We happened to be standing talking and he come up to us, I guess he was giving notification that he had hurt his back, that he had -- that he needed to go home or get this taken care of, but he had not said anything to Larry individually. He come up to both of us at the same time, which is the right thing for him to do. He needs to report it." (App. P. 7). The scope of review is de novo on the record of the trial court, accompanied by a presumption of correctness of the judgment of the trial court, unless the preponderance of the evidence is otherwise. T.C.A. _ 5-6-225 (e)(2). This panel finds that the preponderance of the evidence establishes notice within T.C.A. _ 5-6-21 and affirms the trial court. As to the issue of causation the treating doctor, Dr. Leventhal, testified to a history given him by the employee of a work related injury. (Leventhal Depo. P.11).
Authoring Judge: Special Judge Billy Joe White
Originating Judge: Hon. Robert A. Lanier,
Shelby County Workers Compensation Panel 08/22/96
Autto Lee Taylor, Sr. v. Bailey-Parks Urethane, Inc.,
02S01-9602-CV-00018
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 appeal the employer contends no notice was given and causation was not proven. The trial judge found proper notice and a work-related injury. This panel affirms the judgment of the trial judge. The Plaintiff testified, "A. I told him about it. He just sat there and looked at me. He didn't say nothing. Q. What did you tell him? A. I told him I hurt my back Friday. I needed to go to the doctor. Q. Did Mr. Tutor ask you any questions at that time? A. He asked me where I hurt my back. I said here at the job." (App. P. 28). Mr. Tutor testified, ". . .He had come to evidently Larry, which is his supervisor. We happened to be standing talking and he come up to us, I guess he was giving notification that he had hurt his back, that he had -- that he needed to go home or get this taken care of, but he had not said anything to Larry individually. He come up to both of us at the same time, which is the right thing for him to do. He needs to report it." (App. P. 7). The scope of review is de novo on the record of the trial court, accompanied by a presumption of correctness of the judgment of the trial court, unless the preponderance of the evidence is otherwise. T.C.A. _ 5-6-225 (e)(2). This panel finds that the preponderance of the evidence establishes notice within T.C.A. _ 5-6-21 and affirms the trial court. As to the issue of causation the treating doctor, Dr. Leventhal, testified to a history given him by the employee of a work related injury. (Leventhal Depo. P.11).
Authoring Judge: Special Judge Billy Joe White
Originating Judge: Hon. Robert A. Lanier,
Shelby County Workers Compensation Panel 08/22/96
Jeffrey Wolfe v. Liberty Mutual Insurance Company
02S01-9602-CV-00016
This case is before the Court upon 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 Memorandum Opinion of the Panel should be accepted and approved; 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.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. James M. Tharpe,
Shelby County Workers Compensation Panel 08/12/96
Jeffrey Wolfe v. Liberty Mutual Insurance Company
02S01-9602-CV-00016
This case is before the Court upon 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 Memorandum Opinion of the Panel should be accepted and approved; 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.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge: Hon. James M. Tharpe
Shelby County Workers Compensation Panel 08/12/96
Anthony Ray Morris v. Keebler Company, Inc., et al
02S01-9511-CV-00119
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 held that plaintiff failed to provide timely notice as required by TENN. CODE ANN. _ 5-6-21 and that he failed to meet his burden of proving that his injury arose in the course and scope of his employment. The plaintiff appeals these findings. We affirm the judgment of the trial court. Plaintiff, 28 at the time of trial, worked for defendant as a route salesman. He testified that in early October 1992, he felt "a sudden pain--not pain, but tingling." He testified that he first felt this when his leg hit the ground getting out of the delivery truck he drove for defendant. After the initial onset of symptoms, plaintiff began to feel that his leg was losing strength. At one point early in the same month, his supervisor noticed him limping and asked him about it. Plaintiff reported feeling numbness and tingling in his leg and that he thought he was losing strength in his leg. The supervisor felt his leg and testified that it felt like "mush." Plaintiff did not report any injury or onset of symptoms at work at this time. Plaintiff testified that his left leg gave out on him in early November while he was shooting baskets. On November 1, 1992, he saw his wife's family practitioner, Dr. Walter Verner. He told Dr. Verner that he had pain in his left thigh and that he had been losing muscle strength in his left leg for about a month. Dr. Verner testified that his notes do not indicate a work-related injury, although that is something that he would normally record. Dr. Verner noted a marked reduction in the plaintiff's deep tendon reflex in his left knee and referred him to Dr. Barry Thompson, a neurologist. Dr. Thompson found left quadriceps weakness and ordered a variety of tests, including an EMG which indicated a possible L4-5 radiculopathy and an MRI which indicated a possible L3 herniated disc on the left. He referred plaintiff to Dr. Joseph Buchignani, a neurosurgeon. 2
Authoring Judge: Per Curiam
Originating Judge: Anthony Ray Morris,
Shelby County Workers Compensation Panel 08/12/96
Anthony Ray Morris v. Keebler Company, Inc., et al
02S01-9511-CV-00119
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 held that plaintiff failed to provide timely notice as required by TENN. CODE ANN. _ 5-6-21 and that he failed to meet his burden of proving that his injury arose in the course and scope of his employment. The plaintiff appeals these findings. We affirm the judgment of the trial court. Plaintiff, 28 at the time of trial, worked for defendant as a route salesman. He testified that in early October 1992, he felt "a sudden pain--not pain, but tingling." He testified that he first felt this when his leg hit the ground getting out of the delivery truck he drove for defendant. After the initial onset of symptoms, plaintiff began to feel that his leg was losing strength. At one point early in the same month, his supervisor noticed him limping and asked him about it. Plaintiff reported feeling numbness and tingling in his leg and that he thought he was losing strength in his leg. The supervisor felt his leg and testified that it felt like "mush." Plaintiff did not report any injury or onset of symptoms at work at this time. Plaintiff testified that his left leg gave out on him in early November while he was shooting baskets. On November 1, 1992, he saw his wife's family practitioner, Dr. Walter Verner. He told Dr. Verner that he had pain in his left thigh and that he had been losing muscle strength in his left leg for about a month. Dr. Verner testified that his notes do not indicate a work-related injury, although that is something that he would normally record. Dr. Verner noted a marked reduction in the plaintiff's deep tendon reflex in his left knee and referred him to Dr. Barry Thompson, a neurologist. Dr. Thompson found left quadriceps weakness and ordered a variety of tests, including an EMG which indicated a possible L4-5 radiculopathy and an MRI which indicated a possible L3 herniated disc on the left. He referred plaintiff to Dr. Joseph Buchignani, a neurosurgeon. 2
Authoring Judge: Per Curiam
Originating Judge: Anthony Ray Morris,
Shelby County Workers Compensation Panel 08/12/96
Vickie Lee Patterson v. Btr Dunlop, Inc., d/b/a Huyck-Formex
03S01-9507-CH-00082
Authoring Judge: Houston M. Goddard, Special Judge
Originating Judge: Hon. DENNIS H. INMAN
Knox County Workers Compensation Panel 07/31/96
Larry H. Mull v. Transport South, Inc.
03S01-9512-CV-00135
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 employee/plaintiff injured his right arm while working as a truck driver for defendant. The trial judge awarded plaintiff 12 percent disability to the right arm. We find that the evidence preponderates against an award of 12 percent and in favor of an award of 2 percent permanent partial disability to the right arm and we affirm the judgment of the trial court as so modified. On February 19, 1993, Plaintiff was trying to pry loose a stuck fuel valve on the employer's fuel truck so that he could fill the truck with jet fuel when his wrist "popped" and started tingling. He went to the emergency room that day for treatment, where he was given a forearm splint. Three days later he saw orthopedic surgeon Dr. Alan Odom, who placed plaintiff on light duty for ten days and told him to 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. L. Marie Williams
Hamilton County Workers Compensation Panel 07/31/96
Joyce Jones v. New York Underwriters
03S01-9505-CH-00050
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff alleged injury to her back and neck at work. The trial judge awarded her 15 percent permanent partial disability to the body as a whole. We affirm the judgment of the trial court. Plaintiff was working for at Arcata Graphics on March 17, 1992 when her right index finger was caught in a re-press roller. She tried to jerk her finger out of the roller, fearing her whole hand and arm would be caught, and her supervisor pushed her back from the machine while trying to turn the machine off. She was treated in the emergency room and subsequently referred to Dr. James Phillips, orthopedic surgeon. She received anti-inflammatory medication and underwent physical therapy. Two weeks later she began experiencing increasing pain, "moving up her arm and in her shoulder and neck area," and still later she began having severe headaches on the right side of her head. Dr. Gregory Corradino, a neurologist, began treating plaintiff in late 1993 and performed surgery on her cervical spine. When deposed, Dr. Phillips opined that if plaintiff's finger crush injury were accompanied by a jerking maneuver, it could have caused her disc rupture, and that this possible causal connection would be strengthened if surgery resolved her complaints. Dr. Gregory Corradino found that plaintiff had a herniated cervical disc at C4/5 and performed surgical removal of the disc. W hen asked whether the disc herniation had been caused by plaintiff's jerking her finger out of the press at work, he opined that such motion could cause a disc herniation. Dr. John Marshall, physiatrist, evaluated plaintiff for defendant and treated her for nine months. He opined that although the jerking motion could herniate a disc, he did not think that it had done so in this case. Plaintiff testified that she jerked her head and neck hard to remove her finger from the press. She further said that prior to the injury at Arcata Graphics, she had
Authoring Judge: Senior Judge John K. Byers
Originating Judge: Hon. Richard E. Ladd
Knox County Workers Compensation Panel 07/30/96
Vickie Winningham v. Masters Health Care Center
01S01-9510-CV-00177
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, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2
Authoring Judge: Per Curiam
Originating Judge: Hon. John Turnbull,
Putnam County Workers Compensation Panel 07/24/96
Vickie Winningham v. Masters Health Care Center
01S01-9510-CV-00177
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, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2
Authoring Judge: Per Curiam
Originating Judge: Hon. John Turnbull,
Putnam County Workers Compensation Panel 07/24/96
Thomas E. Roddy v. Beaman Bottling Company
01S01-9511-CH-00194
This workers' compensation appeal has been referred to the Special 1 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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Authoring Judge: Per Curiam
Originating Judge: Hon. Don R. Ash,
Rutherford County Workers Compensation Panel 07/24/96
Thomas E. Roddy v. Beaman Bottling Company
01S01-9511-CH-00194
This workers' compensation appeal has been referred to the Special 1 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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Authoring Judge: Per Curiam
Originating Judge: Hon. Don R. Ash,
Rutherford County Workers Compensation Panel 07/24/96
Thomas E. Roddy v. Beaman Bottling Company
01S01-9511-CH-00194
This workers' compensation appeal has been referred to the Special 1 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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Authoring Judge: Per Curiam
Originating Judge: Hon. Don R. Ash,
Rutherford County Workers Compensation Panel 07/24/96
Bill Purcell v. The Lilly Company and Federated Insurance Company
02S01-9508-CV-00073
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. 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). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. George H. Brown, Jr.,
Shelby County Workers Compensation Panel 07/22/96
Bill Purcell v. The Lilly Company and Federated Insurance Company
02S01-9508-CV-00073
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. 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). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge: Hon. George H. Brown, Jr.,
Shelby County Workers Compensation Panel 07/22/96
Cecelia Teague v. Tecumseh Products Company
02S01-9509-CV-00081
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe H. Walker, III, Judge
Originating Judge: Hon. Julian P. Guinn,
Henry County Workers Compensation Panel 07/15/96
Cecelia Teague v. Tecumseh Products Company
02S01-9509-CV-00081
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe H. Walker, III, Judge
Originating Judge: Hon. Julian P. Guinn,
Henry County Workers Compensation Panel 07/15/96
Lamonte Pearson v. Day International, Inc, d/b/a Colonial Rubber Works, Inc. and Reliance Insurance Company
02S01-9503-CV-00023
This workers' compensation appeal has been referred to the Special Worker's 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. The sole issue for review is the trial court's determination that an amended complaint filed against the Second Injury Fund was barred by the statute of limitations. For the following reasons, we affirm the decision of the trial court. On January 26, 1989, Lamonte Pearson ("Mr. Pearson") injured his back in an automobile accident that was not work related. Mr. Pearson's lawsuit was apparently unsuccessful at trial and no damages were awarded. On March 4, 1991, he again injured his back in the course of his employment with Day International, d/b/a Colonial Rubber Works, Inc. and was treated by the same physician. A complaint for worker's compensation benefits was timely filed on April 15, 1991. The complaint alleged that Mr. Pearson "suffered, and will continue to suffer, temporary total, temporary partial and possibly permanent total disability as a result of this work related injury." His prayer for relief requested an award of "such further temporary total, temporary partial, permanent partial, or permanent total disability and medical expenses to which this Court finds him entitled . . ." A motion to amend the complaint was filed on April 24, 1992, and leave to amend was granted on the same date. An amended complaint adding the Second Injury Fund was filed on May 29, 1992, more than one (1) year after the work related injury. The amended complaint further alleges that Mr. Pearson had previously sustained a permanent physical disability capable of supporting a workers' compensation award if it had arisen out of and in the course of employment and that he had become permanently and totally disabled through the subsequent work related injury. The Second Injury Fund asserted the bar of the statute of limitations. During his deposition in this case, Mr. Pearson's treating physician found him to have a permanent partial disability of 9% to the body as a whole as a result of the non-work related incident and 6% to the body as a whole as a result of the work related incident, or a 12% combined impairment rating under the AMA Guidelines. The trial court found Mr. Pearson to be 1% disabled and apportioned 45% of the award to Colonial and 55% to the Second Injury Fund; the court ruled that recovery against the Second 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge: Hon. J. Steven Stafford, Judge
Dyer County Workers Compensation Panel 07/11/96
Lamonte Pearson v. Day International, Inc, d/b/a Colonial Rubber Works, Inc. and Reliance Insurance Company
02S01-9503-CV-00023
This workers' compensation appeal has been referred to the Special Worker's 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. The sole issue for review is the trial court's determination that an amended complaint filed against the Second Injury Fund was barred by the statute of limitations. For the following reasons, we affirm the decision of the trial court. On January 26, 1989, Lamonte Pearson ("Mr. Pearson") injured his back in an automobile accident that was not work related. Mr. Pearson's lawsuit was apparently unsuccessful at trial and no damages were awarded. On March 4, 1991, he again injured his back in the course of his employment with Day International, d/b/a Colonial Rubber Works, Inc. and was treated by the same physician. A complaint for worker's compensation benefits was timely filed on April 15, 1991. The complaint alleged that Mr. Pearson "suffered, and will continue to suffer, temporary total, temporary partial and possibly permanent total disability as a result of this work related injury." His prayer for relief requested an award of "such further temporary total, temporary partial, permanent partial, or permanent total disability and medical expenses to which this Court finds him entitled . . ." A motion to amend the complaint was filed on April 24, 1992, and leave to amend was granted on the same date. An amended complaint adding the Second Injury Fund was filed on May 29, 1992, more than one (1) year after the work related injury. The amended complaint further alleges that Mr. Pearson had previously sustained a permanent physical disability capable of supporting a workers' compensation award if it had arisen out of and in the course of employment and that he had become permanently and totally disabled through the subsequent work related injury. The Second Injury Fund asserted the bar of the statute of limitations. During his deposition in this case, Mr. Pearson's treating physician found him to have a permanent partial disability of 9% to the body as a whole as a result of the non-work related incident and 6% to the body as a whole as a result of the work related incident, or a 12% combined impairment rating under the AMA Guidelines. The trial court found Mr. Pearson to be 1% disabled and apportioned 45% of the award to Colonial and 55% to the Second Injury Fund; the court ruled that recovery against the Second 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge: Hon. J. Steven Stafford, Judge
Dyer County Workers Compensation Panel 07/11/96
Billy Clevinger v. Burlington Motor Carriers, Inc.
03S01-9508-CV-00092
This workers' compensation appeal from the Hawkins County Circuit Court 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) (1995 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. For the reasons set forth below, we affirm the judgment of the trial court. I. The plaintiff, Billy Clevinger ("employee"), is a resident of Hawkins County, Tennessee. The defendant, Burlington Motor Carriers, Inc., ("employer"), is a trucking company with its principal place of business in Indiana. The employee, who was hired in Tennessee, worked for the employer as truck driver. On December 1, 1993, the employee was driving one of the employer's trucks from Kentucky to Arkansas. While traveling through Tennessee on the way to Arkansas, he was involved in a single vehicle accident. The employee was hospitalized for a short time due to injuries sustained in the accident. He then returned to his home in Hawkins County. On December 28, 1993, the employee signed a document sent to him by the employer's claim adjustor entitled "Agreement to Compensation of Employee and Employer." The form contained the heading "Indiana Workers' Compensation Board, . . . Indianapolis, Indiana." The document included information concerning the date of injury, the type of injury (bruised left arm and strain of lower back), the place of injury, the employee's average weekly wage, and the amount the employee would be receiving as temporary total disability. The form also contained the declaration that " [w]e (employee and employer) have reached an agreement in regards to compensation for the injury sustained by said employee . . . ." The form further indicated that the "terms of the agreement . . . shall be payable . . . until terminated in accordance with the provisions of the Indiana Workers' Compensation/Occupational Diseases Acts." The employee 2
Authoring Judge: Penny J. White, Justice
Originating Judge: Hon. Ben K.
Hawkins County Workers Compensation Panel 07/10/96
Billy Clevinger v. Burlington Motor Carriers, Inc.
03S01-9508-CV-00092
This workers' compensation appeal from the Hawkins County Circuit Court 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) (1995 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. For the reasons set forth below, we affirm the judgment of the trial court. I. The plaintiff, Billy Clevinger ("employee"), is a resident of Hawkins County, Tennessee. The defendant, Burlington Motor Carriers, Inc., ("employer"), is a trucking company with its principal place of business in Indiana. The employee, who was hired in Tennessee, worked for the employer as truck driver. On December 1, 1993, the employee was driving one of the employer's trucks from Kentucky to Arkansas. While traveling through Tennessee on the way to Arkansas, he was involved in a single vehicle accident. The employee was hospitalized for a short time due to injuries sustained in the accident. He then returned to his home in Hawkins County. On December 28, 1993, the employee signed a document sent to him by the employer's claim adjustor entitled "Agreement to Compensation of Employee and Employer." The form contained the heading "Indiana Workers' Compensation Board, . . . Indianapolis, Indiana." The document included information concerning the date of injury, the type of injury (bruised left arm and strain of lower back), the place of injury, the employee's average weekly wage, and the amount the employee would be receiving as temporary total disability. The form also contained the declaration that " [w]e (employee and employer) have reached an agreement in regards to compensation for the injury sustained by said employee . . . ." The form further indicated that the "terms of the agreement . . . shall be payable . . . until terminated in accordance with the provisions of the Indiana Workers' Compensation/Occupational Diseases Acts." The employee 2
Authoring Judge: Penny J. White, Justice
Originating Judge: Hon. Ben K. Wexler
Hawkins County Workers Compensation Panel 07/10/96
Robin Sloan v. Bridgestone/Firestone, Inc.
01S01-9509-GS-00157
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 that the award of disability benefits is excessive; and the employee contends the trial court erred in finding that she did not suffer a disabling work-related neck injury. The panel has concluded that the judgment should be modified as provided herein. On July 5, 1992, the claimant, Robin Sloan, strained her back at work. She reported the injury to her employer and was referred to Dr. G. Jackson Jacobs, who referred her to Dr. David Bratton, an orthopedic surgeon, who, on July 15, 1992, diagnosed lumbar strain and released her to light duty for two weeks. She saw Dr. Daniel Phillips on October 23, 1992 and two other occasions. Dr. Phillips found no permanent disability to the claimant's back or neck caused by a work-related injury. Her attorney referred her to Dr. Richard Fishbein. Dr. Fishbein, on the strength of the history related to him by the claimant, agreed with the original diagnosis and assessed a permanent impairment of five percent to the whole body. The claimant is thirty-four years old witha high school educationand an associates degree in education from Motlow State Community College. She has experience in office work, as a restaurant manager and in business. She quit working for the employer shortly after the accident and was not working at the time of the trial. She was able to work, according to Dr. Bratton's note on and after July 15, 1992. The trial judge awarded permanent partial disability benefits on the basis of thirty-five percent to the body as a whole and temporary total disability benefits from July 5, 1992 to January 7, 1993. 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. Barry Medley,
Warren County Workers Compensation Panel 07/08/96
Robin Sloan v. Bridgestone/Firestone, Inc.
01S01-9509-GS-00157
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 that the award of disability benefits is excessive; and the employee contends the trial court erred in finding that she did not suffer a disabling work-related neck injury. The panel has concluded that the judgment should be modified as provided herein. On July 5, 1992, the claimant, Robin Sloan, strained her back at work. She reported the injury to her employer and was referred to Dr. G. Jackson Jacobs, who referred her to Dr. David Bratton, an orthopedic surgeon, who, on July 15, 1992, diagnosed lumbar strain and released her to light duty for two weeks. She saw Dr. Daniel Phillips on October 23, 1992 and two other occasions. Dr. Phillips found no permanent disability to the claimant's back or neck caused by a work-related injury. Her attorney referred her to Dr. Richard Fishbein. Dr. Fishbein, on the strength of the history related to him by the claimant, agreed with the original diagnosis and assessed a permanent impairment of five percent to the whole body. The claimant is thirty-four years old witha high school educationand an associates degree in education from Motlow State Community College. She has experience in office work, as a restaurant manager and in business. She quit working for the employer shortly after the accident and was not working at the time of the trial. She was able to work, according to Dr. Bratton's note on and after July 15, 1992. The trial judge awarded permanent partial disability benefits on the basis of thirty-five percent to the body as a whole and temporary total disability benefits from July 5, 1992 to January 7, 1993. 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. Barry Medley,
Warren County Workers Compensation Panel 07/08/96