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Norma Gail Flowers v. Emerson Motor Co. 02S01-9609-CH-00083 This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Emerson Motor Company, contends the award of permanent partial disability benefits is excessive. The panel has concluded the judgment should be affirmed. The claimant, Flowers, is 43 years old and a high school graduate. She has a certificate as a nursing assistant, but no other vocational training or education. She has worked continuously for the employer since 1972, in a variety of jobs requiring repetitive use of her hands. On December 6, 1993, the claimant slipped and fell at work, landing on the palms of her hands. Although her wrists and hands had bothered her before the fall, she was not disabled and had not seen a doctor. Following the fall, she saw Dr. Ronald Bingham, who ordered NCS/EMG studies and diagnosed bilateral carpaltunnel syndrome, moderate on the left and moderate to moderately severe on the right. Another doctor diagnosed, in addition to bilateral carpal tunnel syndrome, carpometacarpal subluxation and arthritis of the right thumb. Her carpal tunnel syndrome was found to be caused by repetitive use of her hands and wrists at work and the subluxation caused and the arthritis aggravated by the fall at work. Dr. Bourland assigned a permanent impairment rating of 15.8% to the claimant's right arm and none to the left. Dr. Joseph Boals assigned permanent impairment ratings of 2% to each arm. She is unable to perform her former duties for the employer and has pain and numbness in both hands. She cannot operate a keyboard. One vocational expert estimated her industrial disability at 6-65%; another opined she would be eligible for fewer than 25% of all available jobs. The chancellor awarded permanent partial disability benefits based on 5% to both arms. 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). The extent of an injured worker's disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., 75 S.W.2d 15 (Tenn. 1988). The extent of an injured worker's vocational disability is a factual 2 Authoring Judge: Joe C. Loser, Jr., Special Judge Originating Judge:Hon. George R. Ellis,	Gibson County	Workers Compensation Panel	04/17/97
Hubert Holcomb, Jr. v. Aetna Life & Casualty Co. 02S01-9610-CH-00091 This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer questions the allowance of certain credits to the Second Injury Fund (the Fund). As discussed below, the panel has concluded the judgment should be affirmed. It is undisputed that the employee or claimant, Holcomb, is permanently and totally disabled from a compensable injury by accident, that his compensation rate is $294. per week and that the maximum total benefit in effect on the date of the injury was $117,6. ($294. x 4 weeks). It is also undisputed he has received from the employer's insurer temporary total and temporary partial disability benefits totaling $32,121.82 and permanent disability benefits totaling $11,76.. From a previous compensable injury, the claimant was awarded permanent partial disability benefits equating to an award based on 21.875 percent to the body as a whole, or 87.5 weeks. Thus, under Tenn. Code Ann. section 5-6-28(b)1, the Fund's maximum liability is $294. for 87.5 weeks ($25,725.5), less any credit to which it may be entitled for payments already made by the employer or its insurer. The trial court gave the Fund credit against its liability for $25,725. of temporary disability benefits, thus holding the Fund had no further liability. It allowed the employer's insurer credit against any further liability for disability payments already made in excess of that number. Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Compensable disabilities are divided into four separate classifications: (1) temporary total disability, (2) temporary partial disability, (3) 1 T.C.A. 5-6-28(b)(1)(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of such awards equals or exceeds one hundred percent (1%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards. (B) Benefits which may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund. (Emphasis supplied) 2 Authoring Judge: Joe C. Loser, Jr., Special Judge Originating Judge:Hon. William Michael Maloan,	Obion County	Workers Compensation Panel	04/17/97
Harold E. Mooney v. Brecon Knitting Mills, et al 02S01-9610-CV-00094 This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer and its insurer contend the claimant's injury did not arise out of the employment and the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant, Mooney, is sixty-six years old and has three years of college and some vocational training. His primary vocation has been that of a traveling salesman. At the time of the accident, he was employed as regional sales manager for the employer and used his car to call on customers. On or about May 2, 1993, he was involved in an accident and received a blow to his chest. It is undisputed that he was on his employer's business at the time of the accident. A cardiologist diagnosed his injury as undiagnosed coronary artery disease exacerbated by chest wall trauma. When conservative care failed to produce the desired result, surgery was performed. The operating surgeon assigned a permanent impairment rating of from thirty to fifty percent and advised the claimant to retire. A vocational expert opined the claimant had a vocational opportunity decrease of ninety percent. He has not returned to work. The parties agreed to bifurcate the trial. After the first bifurcated trial, the trial judge found the claimant's injury to be compensable. After the second bifurcated trial, another trial judge awarded permanent partial disability benefits based on seventy-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment are compensable. Tenn. Code Ann. section 5-6-12(a)(5). An injury is compensable, even though the claimant may have been suffering from a serious pre-existing condition or disability, if a work-connected accident can be fairly said to be a contributing cause of such injury. An employer takes an employee as he is and assumes the risk of having a weakened condition aggravated or exacerbated by an injury which might not affect a normal person. Harlan v. McClellan, 572 S.W.2d 641 (Tenn. 1978). 2 Authoring Judge: Joe C. Loser, Jr., Special Judge Originating Judge:Hon. Kay S. Robilio,	Shelby County	Workers Compensation Panel	04/17/97
State vs. Stamm 03C01-9602-CC-00068 Originating Judge:D. Kelly Thomas, Jr.	Blount County	Court of Criminal Appeals	04/17/97
Anita Gardner v. World Color Press, Inc. 02S01-9609-CH-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. section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issue presented is whether the trial court erred in finding that the plaintiff sustained a 2 per cent (2%) permanent partial disability to both arms. The standard of review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); T.C.A. Section 5-6-225(e)(2). The panel finds that the evidence does not preponderate against the finding of the trial court and concludes that the judgment of the trial court should be affirmed. The employee, Anita Gardner, is thirty (3) years old and has a tenth (1th) grade education. She has obtained her GED and is currently enrolled in Dyersburg State Community College intending to become a nurse. She has worked for McDonalds Restaurant, Taco Casa Restaurant, Roseoco Gas Station and Doubleday Book Company. She went to work for World Color Press, Inc., in 1987. World Color Press prints, assembles and ships magazines. During much of her employment, she worked twelve (12) hours per day, seven (7) days a week. Her duties involved the use of her hands and wrists in a constant, fast paced, repetitive manner for long periods of time. In May of 1994, the plaintiff injured her left wrist (she is left handed), while using a manual banding device in the shipping department. In August of 1994, she began having trouble with her right wrist while working in the quality control 2 Authoring Judge: Leonard W. Martin, Special Judge Originating Judge:Hon. Joe G. Riley,	Dyer County	Workers Compensation Panel	04/17/97
03S01-9511-CC-00360 03S01-9511-CC-00360 Originating Judge:R. Jerry Beck	Sullivan County	Court of Criminal Appeals	04/17/97
Pamela Sue Higgins v. Angelica Corporation 02S01-9605-CV-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. section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Defendant appeals from the trial court's award of 45 per cent (45%) permanent partial vocational disability of each arm, following surgery on each wrist for carpal tunnel syndrome. Defendant raises three (3) issues, that the plaintiff's injuries are not causually related to her employment and therefore, not compensable; that the plaintiff did not give proper notice as required by Tenn. Code Ann. section 5-6-21; and that the preponderance of the evidence does not support the trial judge's finding that the plaintiff suffered a 45 per cent (45%) permanent partial vocational disability to each arm. The panel has concluded that the judgment of the trial court should be affirmed. The employee, Ms. Pamela Sue Higgins, is thirty-eight (38) years old, quit school in the eighth (8th) grade, and she has performed sewing work for different manufacturers for twenty (2) years. Ms. Higgins began her employment with Angelica on January 14, 1991. Shortly after going to work for Angelica she was seen by Doctor James H. Thomas, a family practitioner, with the specific complaint that her right wrist had hurt for five (5) days. Approximately two and one-half (2 l/2) months later she returned to Doctor Thomas with the same complaint. Doctor Thomas soon concluded that her problem was carpal tunnel syndrome in nature and referred her to Doctor L. David Johnson, an orthopaedic surgeon, for treatment. After treating her conservatively, excluding other possible causes of her symptoms, and based upon electrodiagnostic studies performed by Doctor Ron Bingham, on May 13, 1991, Doctor Johnson diagnosed her as having moderate carpal tunnel syndrome on the right, and severe carpal tunnel syndrome on the left. Doctor Johnson subsequently performed carpal tunnel surgeries on both right and left wrists. She was also seen by Doctors Cohn and Cramer, and Pechacek, in consultation, in the process of eliminating other causes for her symptoms and confirming her diagnosis. Doctor 2 Authoring Judge: Leonard W. Martin, Special Judge Originating Judge:Hon. C. Creed Mcginley	Hardin County	Workers Compensation Panel	04/17/97
James Clifford Tatum v. Methodist Health Systems, et al 02S01-9609-CH-00079 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 to the Supreme Court of findings of fact and conclusions of law. The director of the Workers' Compensation Division of Tennessee Department of Labor, as trustee for the Second Injury Fund (Second Injury Fund), appeals from the decision of the trial court. The court approved, over the objection of the Second Injury Fund, a settlement agreement between the employee, James Clifford Tatum, and the employer, Methodist Health Systems (Methodist Hospital of Dyersburg, Inc.), limiting the employer's liability to benefits based on 31 per cent (31%) permanent partial disability to the whole body. The claim against the Second Injury Fund was reserved until trial. The trial of the case was between the employee and the Second InjuryFund. Subsequently, at trial, the trial court found the employee to be permanently and totally disabled and held the Second Injury Fund liable for 6 per cent (6%) of that total disability. Because the court erred in approving the settlement over the objectionof the Second Injury Fund, the panel concludes that both judgments should be set aside, and the case remanded for a new trial on all issues. The trial court recognized its error and stated in its memorandum opinion of April 29, 1996, as follows: "This settlement was approved over the objection of the Fund. In retrospect, the Court should not have approved the settlement over the objection of the Fund, but should have tried both claims together." However, the trial court apparently believed that it had cured its error. We conclude otherwise. In a very recent case decided by the Supreme Court on December 23, 1996, the court reasoned as follows: Here, the trial court approved a settlement concerning the 2 Authoring Judge: Leonard W. Martin, Special Judge Originating Judge:Martin, Judge	Dyer County	Workers Compensation Panel	04/17/97
Fred Bowen vs. Billy Compton 02C01-9701-CC-00016	Lake County	Court of Criminal Appeals	04/17/97
State vs. John F. Wolard 01C01-9612-CC-00532	Montgomery County	Court of Criminal Appeals	04/16/97
01A01-9508-CV-00377 01A01-9508-CV-00377 Originating Judge:Don R. Ash	Rutherford County	Court of Appeals	04/16/97
Roberts vs. Lowe 03A01-9610-CC-00333 Originating Judge:Arden L. Hill	Johnson County	Court of Appeals	04/16/97
X2010-0000-XX-X00-XX X2010-0000-XX-X00-XX	Hamblen County	Court of Appeals	04/16/97
02A01-9510-CV-00240 02A01-9510-CV-00240 Originating Judge:George R. Ellis	Haywood County	Court of Appeals	04/16/97
El Rayford vs. Stephen Leffler (Order) 02A01-9607-CV-00162		Court of Appeals	04/16/97
State., ex. rel., vs. United Physicians Ins. 01A01-9610-CH-00449 Originating Judge:Robert S. Brandt	Davidson County	Court of Appeals	04/16/97
01A01-9610-JV-00493 01A01-9610-JV-00493 Originating Judge:Barry R. Brown	Sumner County	Court of Appeals	04/16/97
Brian Grant vs. Tonya Grant 02A01-9603-CV-00053 Originating Judge:Wyeth Chandler		Court of Appeals	04/16/97
Gloria Gilliland vs. Gary Stanley 02A01-9603-GS-00056 Originating Judge:William A. Peeler	Tipton County	Court of Appeals	04/16/97
03C01-9601-CC-00016 03C01-9601-CC-00016 Originating Judge:E. Eugene Eblen	Roane County	Court of Criminal Appeals	04/16/97
X2010-0000-XX-X00-XX X2010-0000-XX-X00-XX	Knox County	Court of Appeals	04/16/97
Cashion vs. Robertson 01A01-9506-CH-00257 Originating Judge:Ben H. Cantrell		Court of Appeals	04/11/97
State vs. Theodore Howard 02C01-9508-CR-00237	Shelby County	Court of Criminal Appeals	04/11/97
Mcpherson vs. Stokes, et. al. 01A01-9505-CH-00216 Originating Judge:C. Allen High	Davidson County	Court of Appeals	04/11/97
Draper vs. Reaver, et. al. 01A01-9609-CV-00394 Originating Judge:Marietta M. Shipley	Davidson County	Court of Appeals	04/11/97