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| Vanessa Phillips v. Pennsylvania National Insurance Company
03S01-9512-CV-00128
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) that the evidence preponderates against the trial court's finding that the employee suffered an injury by accident in the course of her employment, (2) that the evidence preponderates against the trial court's finding that the employee's permanent impairment is causally related to her employment, (3) that the trial court erred in awarding medical expenses of an unauthorized provider, and (4) that the trial court abused its discretion with respect to the award of discretionary costs. The panel concludes that the judgment should be reversed, for the reasons set forth below. The employee or claimant, Vanessa Phillips, now Vanessa Dunkhase, is a thirty-three year old graduate of Jefferson County High School, who was employed as a boarder for Tennessee Machine & Hosiery. The employer manufactures socks, among other things. In the production process, damp socks are delivered in boxes or buggies to a pressing machine, where boarders remove them one at a time and place them on a form to be machine dried and pressed before being packaged for delivery and sale. On February 2, 1993, the claimant was treated by a dentist for an abscessed tooth. The next day, she asked to be excused from work, but the request was denied by the employer. After working a full shift for another employer, Hardee's, she reported to work at approximately 3:3 p.m. About an hour later, she ran to the bathroom crying. Another employee checked on her but she did not claim any work related injury. The co-worker summoned the claimant's supervisor, Jim Sullivan. The claimant told Sullivan that she was sick with an upset 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Ben W. Hooper, Ii, |
Knox County | Workers Compensation Panel | 10/15/96 | |
| Greene County, Tennessee v. Lisa Ward, Jarrod Ward and Jordan Ward
03S01-9510-CH-00116
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. These cases were instituted by Greene County, Tennessee, plaintiff, against the dependents of William Guy Ward, deceased, and Robert John Desormeaux, deceased, defendants, to determine whether the deaths of the two individuals are compensable under the Workers' Compensation laws of our state. The trial court determined the claims were not compensable as their deaths did not arise out of and in the course of their employment. Defendants have appealed insisting the evidence preponderates against this finding. William Guy Ward and Robert John Desormeaux were part-time auxiliary officers of the Greene County Sheriff's Department. They died as a result of an airplane crash on the night of July 11, 1994, at about 11: p.m. The airplane was being operated by Officer Desormeaux and Officer W ard was riding as a passenger. The record indicates auxiliary officers received limited training as compared to the training of a regular certified deputy sheriff. As auxiliary officers, they were scheduled to work twice a month for 8-16 hours, and this assignment was on weekends because the Sheriff's Department was usually busier at this time during the week. Auxiliary officers were always assigned to work with a regular certified deputy sheriff on patrol and were paid $5. per hour when performing scheduled work. The evidence indicates an auxiliary officer could work at other times with permission but would not be compensated for this work activity. Officers Ward and Desormeaux had been auxiliary officers for about one year, and their work activity with the Sheriff's Department had been riding with and assisting a regular deputy on patrol. As auxiliary officers, they were bonded deputies. The Auxiliary Organization Manual Of The Greene County Sheriff's Department provided auxiliary personnel shall follow the direction of full-time 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Dennis H. Inman |
Greene County | Workers Compensation Panel | 10/15/96 | |
| Shelby Williams Industries v. Alton Sane
03S01-9601-CH-00004
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff, Shelby Williams Industries, Inc., instituted suit against Defendant, Alton Sane, seeking a determination as to whether the defendant had sustained a work-related injury which was compensable. The Chancellor found the claim to be compensable and fixed defendant's permanent partial disability at fifty percent to the body as a whole. The employer has appealed insisting the evidence is not sufficient to support the award and that the evidence preponderates against the trial court's findings. The employee is forty years old and has a twelfth-grade education. He testified he sustained an injury on July 12, 1994, while assembling chair backs; he was using a two-wheel dolly and, as he rolled it, a chair frame started to slide off and he attempted to catch it with the dolly in one hand and the frame in the other hand; while in this position, he felt a jolt in his low back; the next morning his legs tingled, and there was a numb feeling. He was seen at the hospital emergency room and was released; he also saw the company physician and later an orthopedic surgeon; he returned to work on August 3, 1994. The employee told the court he was injured again on October 7, 1994, while doing the same type work; he said, while in a twisted position, he bent over to get a chair seat; as he was reaching for the seat, he sneezed, and it felt like he had been shot; he saw the company doctor again and the orthopedic surgeon, who diagnosed the problem as a ruptured disc; surgery was performed during November, 1994; and he had not been released to return to work as of the date of the trial on August 31, 1995. Dr. William Foster, an orthopedic surgeon, testified by deposition and stated he saw defendant shortly after both the July and October incidents; his opinion in July was that he had suffered a lumbar strain with a possible ruptured dis,c but he did not do further testing as his patient seemed to improve and returned to work; he 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Dennis H. Inman, |
Hamblen County | Workers Compensation Panel | 10/15/96 | |
| Deborah Jean Barne v. Emerson Electric Company
02S01-9505-CV-00043
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 employer contends the trial court erred in: 1. Awarding permanent partial disability benefits based on 8% to the left hand; and 2. Aw ardi ng th e cos t of o btain ing D r. Ro bert J. Ba rnet t's depos ition as a recove rable dis cretiona ry cost. We affirm the trial court as to both issues. Deborah Jean Barner ("Barner") is 41 years of age and a high school graduate. Other than attending college for one quarter, she has no additional educational experience , specialized training or vocational training. H er work history consists entirely of factory work. Prior to employment at Emerson, Barner performed assem bly work in a plastics factory a nd worked in fa ctories where clothing was co nstructe d and s hoes w ere ma nufactu red. On October 18, 1993, Barner injured her non-dominant left hand arising out of the course and scope of her employment. From a list of three doctors given to her by the employer, she chose Dr. Harrison, whose billing reflects that he treated her on four occasions over a four month period. Dr. Harrison referred her to Dr. Stonecipher, an o rthopedic surgeon. B arner became d issatisfied with Dr. Stonecipher's treatment and continued to have difficulty performing her job duties withou t swellin g and c onstan t pain. Barner was then referred by her attorney to Dr. David Gaw, who referred her to Dr. Charles Emerson, another orthopedic surgeon. Dr. Emerson's records, 2
Authoring Judge: Janice M. Holder, Judge
Originating Judge:Hon. Julian Guinn, |
Wayne County | Workers Compensation Panel | 10/10/96 | |
| Bobby G. Dickens v. Travelers Insurance Company
01S01-9512-CR-00227
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the award of permanent partial disability benefits is excessive. The panel concludes the award should be affirmed. The claimant, Dickens, is 54 years old with a high school education and no special skills. In April of 1993, while working for Eatherly Construction Company as a ditch digger, he twisted his right knee. He was referred to Dr. John McInnis, who arthroscopically diagnosed and removed a large tear from the lateral meniscus of the claimant's right knee joint. The doctor assessed a permanent anatomical impairment of seven and one-half percent to the right knee, from AMA Guidelines. The claimant returned to work on June 21, 1993, but is medically restricted from repetitive squatting. Because his duties at Eatherly required him to climb, squat and kneel, he left Eatherly and is now working for another construction company servicing equipment, a job he can perform while standing in a pit. He is making less than he would be making in his former work at Eatherly. The trial court awarded permanent partial disabililty benefits on the basis of forty percent to the injured 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 of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2). From a consideration of those factors in this case, the panel finds that the evidence fails to preponderate against the judgment of the trial court. The judgment of the trial court is therefore affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. J. O. Bond, |
Smith County | Workers Compensation Panel | 10/10/96 | |
| St. Paul Fire & Marine Insurance Company and Lineal Group, Inc. v. Cecil Carrick
01S01-9509-CV-00146
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 Defendant/Counter-Plaintiff 85% permanent partial disability to the left lower extremity. Plaintiff/Counter-Defendant below appeals, arguing that the trial court erred in finding that the employee's testimonywas credible; that the employee failed to prove that he sustained a permanent injury which arose out of and in the course of his employment; that the employee failed to give proper notice of his injury; that the evidence does not support an award of 85% to the lower extremity; and that the medical treatment awarded by the trialcourt was unauthorized and should not have been allowed. We affirm the judgment of the trial court. Defendant/Counter-Plaintiff worked at Samsonite for 3 years. Defendant/Counter-Plaintiff's other work experience includes growing tobacco and peppers, raising cattle, and performing various odd jobs. Defendant/Counter- Plaintiff has a high school education and some training in electronics. Defendant/Counter-Plaintiff's duties at Samsonite included counting and transferring chairs from one line to another. This involved shifting his weight from one leg to the other. It also involved spending long periods of time on his feet while working on a concrete floor. Because Defendant/Counter-Plaintiff suffered several strokes since the time of the injury and was unable to remember many of the specific facts surrounding his injury so as to be unavailable, the trial court relied on Defendant/Counter- Plaintiff's deposition testimony. Defendant/Counter-Plaintiff was 55 years old on the date that he gave his deposition testimony. Defendant/Counter-Plaintiff testified that he suffered from pain in his left knee. For four or five months prior tothe injury complained of, Defendant/Counter- Plaintiff's leg would swell from hip down to ankle. Defendant/Counter-Plaintiff told his foreman about the problems with his legs
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge:Hon. Robert E. Corlew |
Rutherford County | Workers Compensation Panel | 10/10/96 | |
| Deborah Jean Barne v. Emerson Electric Company
02S01-9505-CV-00043
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 employer contends the trial court erred in: 1. Awarding permanent partial disability benefits based on 8% to the left hand; and 2. Aw ardi ng th e cos t of o btain ing D r. Ro bert J. Ba rnet t's depos ition as a recove rable dis cretiona ry cost. We affirm the trial court as to both issues. Deborah Jean Barner ("Barner") is 41 years of age and a high school graduate. Other than attending college for one quarter, she has no additional educational experience , specialized training or vocational training. H er work history consists entirely of factory work. Prior to employment at Emerson, Barner performed assem bly work in a plastics factory a nd worked in fa ctories where clothing was co nstructe d and s hoes w ere ma nufactu red. On October 18, 1993, Barner injured her non-dominant left hand arising out of the course and scope of her employment. From a list of three doctors given to her by the employer, she chose Dr. Harrison, whose billing reflects that he treated her on four occasions over a four month period. Dr. Harrison referred her to Dr. Stonecipher, an o rthopedic surgeon. B arner became d issatisfied with Dr. Stonecipher's treatment and continued to have difficulty performing her job duties withou t swellin g and c onstan t pain. Barner was then referred by her attorney to Dr. David Gaw, who referred her to Dr. Charles Emerson, another orthopedic surgeon. Dr. Emerson's records, 2
Authoring Judge: Janice M. Holder, Judge
Originating Judge:Hon. Julian Guinn, Judge |
Henry County | Workers Compensation Panel | 10/10/96 | |
| Bobby G. Dickens v. Travelers Insurance Company
01S01-9512-CR-00227
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the award of permanent partial disability benefits is excessive. The panel concludes the award should be affirmed. The claimant, Dickens, is 54 years old with a high school education and no special skills. In April of 1993, while working for Eatherly Construction Company as a ditch digger, he twisted his right knee. He was referred to Dr. John McInnis, who arthroscopically diagnosed and removed a large tear from the lateral meniscus of the claimant's right knee joint. The doctor assessed a permanent anatomical impairment of seven and one-half percent to the right knee, from AMA Guidelines. The claimant returned to work on June 21, 1993, but is medically restricted from repetitive squatting. Because his duties at Eatherly required him to climb, squat and kneel, he left Eatherly and is now working for another construction company servicing equipment, a job he can perform while standing in a pit. He is making less than he would be making in his former work at Eatherly. The trial court awarded permanent partial disabililty benefits on the basis of forty percent to the injured 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 of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2). From a consideration of those factors in this case, the panel finds that the evidence fails to preponderate against the judgment of the trial court. The judgment of the trial court is therefore affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. J. O. Bond, |
Smith County | Workers Compensation Panel | 10/10/96 | |
| St. Paul Fire & Marine Insurance Company and Lineal Group, Inc. v. Cecil Carrick
01S01-9509-CV-00146
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 Defendant/Counter-Plaintiff 85% permanent partial disability to the left lower extremity. Plaintiff/Counter-Defendant below appeals, arguing that the trial court erred in finding that the employee's testimonywas credible; that the employee failed to prove that he sustained a permanent injury which arose out of and in the course of his employment; that the employee failed to give proper notice of his injury; that the evidence does not support an award of 85% to the lower extremity; and that the medical treatment awarded by the trialcourt was unauthorized and should not have been allowed. We affirm the judgment of the trial court. Defendant/Counter-Plaintiff worked at Samsonite for 3 years. Defendant/Counter-Plaintiff's other work experience includes growing tobacco and peppers, raising cattle, and performing various odd jobs. Defendant/Counter- Plaintiff has a high school education and some training in electronics. Defendant/Counter-Plaintiff's duties at Samsonite included counting and transferring chairs from one line to another. This involved shifting his weight from one leg to the other. It also involved spending long periods of time on his feet while working on a concrete floor. Because Defendant/Counter-Plaintiff suffered several strokes since the time of the injury and was unable to remember many of the specific facts surrounding his injury so as to be unavailable, the trial court relied on Defendant/Counter- Plaintiff's deposition testimony. Defendant/Counter-Plaintiff was 55 years old on the date that he gave his deposition testimony. Defendant/Counter-Plaintiff testified that he suffered from pain in his left knee. For four or five months prior tothe injury complained of, Defendant/Counter- Plaintiff's leg would swell from hip down to ankle. Defendant/Counter-Plaintiff told his foreman about the problems with his legs
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge:Hon. Robert E. Corlew |
Rutherford County | Workers Compensation Panel | 10/10/96 | |
| Joseph Jarreau v. Vanliner Insurance Company
01S01-9512-CH-00228
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. This appeal presents the questions whether and under what circumstances, if any, an injured worker may give up his right to future medical expenses. The panel concludes the trial court's judgment, approving a settlement in which the right to future medical expenses was voluntarily surrendered for consideration, should be affirmed. The employee or claimant, Jarreau, commenced this civil action by filing a complaint for workers' compensation benefits, averring that he had suffered an injury by accident arising out of and in the course of his employment by Ozark Motor Lines, Inc. The complaint further averred, in relevant part, that his injury had been diagnosed as a tear of the left medial meniscus, that he had reached maximum medical recovery and would retain a permanent impairment but that there was a genuine dispute as to the extent of his permanent disability. He sought to recover medical and permanent partial disability benefits. Vanliner Insurance Company served its answer admitting it was the insurer for Ozark, but denying that the claimant had suffered a compensable injury or that he was permanently disabled. On September 8, 1994, before the case could be tried, the claimant and his attorney and the attorney for Vanliner appeared before Judge Capers seeking approval of a negotiated settlement. By the settlement terms, the claimant was to receive $25,459.2, representing a permanent partial disability of forty percent to the left leg, and an additional $9,54.8 in consideration of the claimant's relinquishment of any claim for future medical benefits, for a total of $35,.. Additionally, the claimant had already received $15,481.3 in medical benefits and $12,481.3 in temporary total disability benefits. We find in the record no transcript of the settlement hearing, but Judge Capers found that Dr. Robert V. Russell had opined the claimant had reached maximum medical improvement and would retain a permanent anatomical impairment of ten percent to the leg. The judge further found the settlement to be in the best interest of the claimant, "in light of the controversy and dispute between the parties." The agreement was approved as a full, final and complete settlement of Mr. Jarreau's claim against the employer and its insurer. Almost eight months later, on April 28, 1995, the claimant applied to the court, per Tenn. R. Civ. P. 6.2, for an order setting aside the settlement 2
Authoring Judge: Per Curiam
Originating Judge:Hon. Bobby Capers, |
Wilson County | Workers Compensation Panel | 10/10/96 | |
| Kenneth W. Leach v. Driver Power Leasing & Humboldt Express
01S01-9601-CV-00021
Authoring Judge: Per Curiam
Originating Judge:Hon. Randolph A. Veazey, |
Davidson County | Workers Compensation Panel | 10/10/96 | |
| Kenneth W. Leach v. Driver Power Leasing & Humboldt Express
01S01-9601-CV-00021
Authoring Judge: Per Curiam
Originating Judge:Hon. Randolph A. Veazey, |
Davidson County | Workers Compensation Panel | 10/10/96 | |
| Florine Vandyke v. Plumley Rubber Company and Liberty Mutual Insurance Co.
02S01-9604-CV-00039
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, Plumley Rubber Company and the insurance carrier, Liberty Mutual, contend the trial court erred in granting judgment for medical expenses to the employee after they had been paid by the employee's health plan. The panel agrees and reverses the judgment of the trial court. It was stipulated that the employee's total medical expenses totaled $22,278.55. It was further stipulated that the Plaintiff had paid prior to trial $669.29 in out-of-pocket medical expenses. Her remaining medical expenses were paid by Plumley through its group health care plan. The insurance company paid the remainder. The parties further stipulated that Plumley's group health insurance plan did not contain a specific set-off clause for workers' compensation benefits. Plumley is self-insured for group health benefits. This panel holds that under T.C.A. _ 5-6-24 that the employer is responsible for payment of medical expenses and that the employee is not entitled to a judgment against the employer for medical bills which have already been paid. This panel holds that this case is controlled by Bituminous Casualty Corp. v. Smith, 288 S.W.2d, 913, 916 (Tenn. 1956). The judgment of the trial court is reversed and remanded for appropriate action under this decision. The costs are taxed to the Plaintiff/Appellee.
Authoring Judge: Special Judge Billy Joe White
Originating Judge:Hon. C. Creed Mcginley, |
Henry County | Workers Compensation Panel | 10/01/96 | |
| Gregory Leverett v. State of Tennessee
03C01-9511-CR-00362
The appellant, Gregory Leverett, pled guilty to rape. He was sentenced to twelve years incarceration. He petitioned for post-conviction relief. The petition was dismissed as untimely. He now appeals that dismissal. We respectfully reverse and remand for an evidentiary hearing.
Authoring Judge: Paul G. Summers
Originating Judge:Hon. Douglas A. Meyer, Judge |
Knox County | Workers Compensation Panel | 09/30/96 | |
| Gary W. Hardin v. Great Rivers Employment Aptitude and Technical Service, Inc., et al
02S01-9603-CH-00028
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 that no notice was given by the employee. The panel concludes the judgment should be affirmed as modified. On January 16, 1995, Plaintiff began working at Young Radiator Company as a welder. (T.T. at 16). Plaintiff testified that after he had been working for a period of three weeks, he experienced pain and numbness in his left hand. (T.T. at 17-18). Plaintiff went to see Dr. Charles White of his own accord on February 6, 1995, and paid for the visit through TennCare. (T.T. at 5, 18, 51). Plaintiff testified that he continued to have pain and numbness in his hand and saw Dr. John Phillips on February 22, 1995. (T.T. at 22). Dr. Neblett first saw Plaintiff on February 27, 1995. (Neblett Depo. at 3). Following Dr. Neblett's evaluation, Plaintiff elected to have carpal tunnel release surgery, which was performed on March 9, 1995. (Neblett Depo. at 5-6). The Plaintiff testified that the pain started when he banged on metal and this was what he told his doctors. (T.T. at 61). He further testified, ". . . (b)ut I told them that I didn't know exactly, you know, if that was the cause or not, because I didn't know because I'm not a doctor." (T.T. at 61). Casual connection between the injury and work was related to the employee on March 31, 1995 by Dr. Neblett. (T.R. at 58). Written notice was provided to the employer on April 5, 1995. This panel finds that notice was given within thirty (3) days of knowledge of his injury pursuant to T.C.A. _ 5-6-21 and this case should be affirmed on this issue.
Authoring Judge: Special Judge Billy Joe White
Originating Judge:Hon. Joe E. Morris, |
Hardin County | Workers Compensation Panel | 09/30/96 | |
| Gary W. Hardin v. Great Rivers Employment Aptitude and Technical Service, Inc., et al
02S01-9603-CH-00028
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 that no notice was given by the employee. The panel concludes the judgment should be affirmed as modified. On January 16, 1995, Plaintiff began working at Young Radiator Company as a welder. (T.T. at 16). Plaintiff testified that after he had been working for a period of three weeks, he experienced pain and numbness in his left hand. (T.T. at 17-18). Plaintiff went to see Dr. Charles White of his own accord on February 6, 1995, and paid for the visit through TennCare. (T.T. at 5, 18, 51). Plaintiff testified that he continued to have pain and numbness in his hand and saw Dr. John Phillips on February 22, 1995. (T.T. at 22). Dr. Neblett first saw Plaintiff on February 27, 1995. (Neblett Depo. at 3). Following Dr. Neblett's evaluation, Plaintiff elected to have carpal tunnel release surgery, which was performed on March 9, 1995. (Neblett Depo. at 5-6). The Plaintiff testified that the pain started when he banged on metal and this was what he told his doctors. (T.T. at 61). He further testified, ". . . (b)ut I told them that I didn't know exactly, you know, if that was the cause or not, because I didn't know because I'm not a doctor." (T.T. at 61). Casual connection between the injury and work was related to the employee on March 31, 1995 by Dr. Neblett. (T.R. at 58). Written notice was provided to the employer on April 5, 1995. This panel finds that notice was given within thirty (3) days of knowledge of his injury pursuant to T.C.A. _ 5-6-21 and this case should be affirmed on this issue.
Authoring Judge: Special Judge Billy Joe White
Originating Judge:Hon. Joe E. Morris, |
Hardin County | Workers Compensation Panel | 09/30/96 | |
| Kenneth Fuller v. Liberty Mutual Insurance Company, Madison Industries, Inc. and Sue Ann Head, Director of The Division of Workers Compensation, Tennessee Department of Labor
02S01-9508-CV-00076
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, Fuller, contends "the trial court erred in limiting his permanent total disability award to a maximum total benefit of one hundred forty-two thousand, three hundred eighty-eight dollars ($142,388.), as opposed to ordering lifetime benefits pursuant to Tenn. Code Ann. 5-6-27(4)(A), when the employee was found to be totally disabled." The Second Injury Fund (the Fund) contends the evidence preponderates against the trial court's finding that the claimant is permanently and totally disabled as a result of a work-related injury by accident. The panel concludes the judgment should be modified as provided herein. The claimant has three infirmities. He has a pre-existing avascular necrosis, which was surgically treated and from which he rehabilitated himself and worked for the employer, Madison Industries; he has carpal tunnel syndrome, which he gradually developed from repetitive use of his hands at Madison Industries; and he has Raynaud's disease or mixed connective tissue disorder, vasculitis, unrelated to any on-the-job injury. At the time of the trial, the claimant was thirty-seven years old and had a high school education and a drafting diploma. His working history includes bagging groceries, stocking shelves, operating machines, driving forklifts and production work, as well as drafting. In 1985, Dr. James Warmbrod, an orthopedic surgeon, performed hip surgery on the claimant's hips for bilateral avascular necrosis, secondary to chronic alcoholism. The same doctor performed bilateral carpal tunnel release surgery on the claimant in 1993, after the claimant developed bilateral carpal tunnel syndrome from his work for the employer. Dr. Warmbrod assigned ten percent permanent impairment to both arms and suggested that the claimant be limited to light, sedentary work and not do repetitive work with his hands. The doctor also suggested that, because of the claimant's vasculitis in both arms, which was diagnosed after he developed carpal tunnel syndrome, that he should work in a warm environment. Dr. Robert Winston, an internist, conducted an independent medical examination on June 21, 1994, after vasculitis had been diagnosed, and concluded that the claimant was permanently and totally disabled. The doctor assigned twelve to fifteen percent permanent impairment to each upper extremity and forty percent to the pre-existing hip condition. The trial court found the claimant to be permanently and totally disabled as a result of all three infirmities and awarded benefits accordingly, not to exceed $142,388., the maximum disability award allowable under the 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Whit Lafon, |
Madison County | Workers Compensation Panel | 09/30/96 | |
| Lisa Hughes v. Mtd Products, Inc., Cub Cadet Division
02S01-9602-CH-00019
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supeme 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. Lisa Hughes, ("plaintiff") has appeal ed from the judgment of the trial court denying her claim for workers' compensation benefits on the grounds that she failed to carry her burden of proof as to any permanent partial disability. On appeal, the only issue presented by plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereafter stated, we find that it does not. Plaintiff was employed as an assembly line worker for MTD Products, Inc. ("defendant"), which were engaged primarily in building lawnmowers. In December 1992 she injured her neck and shoulder while lifting a lawnmower deck onto an assembly line. She was initially seen by Dr. White and then by Dr. Joseph P. Rowland, a neurosurgeon. Dr. Rowland found that her problems were muscular in origin and returned her to work with no restrictions and no permanent impairment on February 15, 1993. In April 1993, plaintiff claimed to have sustained a work-related injury to her low back while lifting a l awnmower frame onto a motor. At that time, plaintiff received outpatient treatment by Dr. Jack Pettigrew, who also referred her to Dr. Larry David Johnson, a local orthopedic surgeon. Dr. Johnson treated her as an outpatient, performing among other things x-rays, a CT scan, and myelogram, all of which were normal. On June 21, 1993, Dr. Johnson released her to return to work and confirmed that plaintiff could return to work for full duty with no permanent impairment on July 22, 1993. 2
Authoring Judge: Per Curiam
Originating Judge:Hon. George Ellis, |
Haywood County | Workers Compensation Panel | 09/27/96 | |
| Danny J. Adams v. Liberty Mutual Insurance Company and Plumley Companies, Inc.
02S01-9512-CV-00132
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge:Hon. C. Creed Mcginley |
Henry County | Workers Compensation Panel | 09/27/96 | |
| Danny J. Adams v. Liberty Mutual Insurance Company and Plumley Companies, Inc.
02S01-9512-CV-00132
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge:Hon. C. Creed Mcginley, |
Henry County | Workers Compensation Panel | 09/27/96 | |
| Patty Utley, Widow of Joe Henry Utley, Deceased v. Chester County Highway Department
02S01-9602-CH-00020
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The only issue on appeal is whether the chancellor abused his discretion by commuting a portion of the permanent partial disability award to a lump sum. The panel finds the judgment should be affirmed. Joe Henry Utley died as a result of an injury by accident arising out of and in the course of his employment by the Chester County Highway Department. He left a widow, Patty Utley, and four dependent children. The widow and children were awarded dependents' benefits totaling $19,2., payable at the rate of $137.17 per week. The claimant and four children - and another child of hers - were living in a 6 square foot home. She applied to the trial court for a commutation of the award for the purpose of purchasing a larger home. The proof shows and the chancellor found that she is able to wisely manage her money. The trial court ordered $45,2. paid in a lump sum and the balance periodically, as provided by statute. The chancellor found further that moving into a larger home would be in the best interest of both the claimant and the dependent children and directed that the deed be drafted in such a way as would protect the interest of all the beneficiaries. The evidence does not preponderate against that finding. Upon application by a party and approval by a proper court, benefits which are payable periodically may be commuted to one or more lump sum payment(s), if the court finds such commutation to be in the best interest of the dependents of the deceased employee and that the party seeking a lump sum payment has the ability to wisely manage and control the commuted award. Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994). Such applications are not granted as a matter of course. Forkum v. Aetna Life & Casualty Insurance Company, 852 S.W.2d 23 (Tenn. 1993). The claimant has the burden of establishing, first, that a lump sum is in his or her best interest and, second, that he or she is capable of wisely managing and controlling a lump sum, but the decision whether to commute to a lump sum is within the discretion of the trial court. Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554 (Tenn. 1992). We have independently examined the record and find that the chancellor did not abuse his discretion in allowing the partial commutation in this case. The judgment is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Joe C. Morris, |
Chester County | Workers Compensation Panel | 09/27/96 | |
| Patty Utley, Widow of Joe Henry Utley, Deceased v. Chester County Highway Department
02S01-9602-CH-00020
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The only issue on appeal is whether the chancellor abused his discretion by commuting a portion of the permanent partial disability award to a lump sum. The panel finds the judgment should be affirmed. Joe Henry Utley died as a result of an injury by accident arising out of and in the course of his employment by the Chester County Highway Department. He left a widow, Patty Utley, and four dependent children. The widow and children were awarded dependents' benefits totaling $19,2., payable at the rate of $137.17 per week. The claimant and four children - and another child of hers - were living in a 6 square foot home. She applied to the trial court for a commutation of the award for the purpose of purchasing a larger home. The proof shows and the chancellor found that she is able to wisely manage her money. The trial court ordered $45,2. paid in a lump sum and the balance periodically, as provided by statute. The chancellor found further that moving into a larger home would be in the best interest of both the claimant and the dependent children and directed that the deed be drafted in such a way as would protect the interest of all the beneficiaries. The evidence does not preponderate against that finding. Upon application by a party and approval by a proper court, benefits which are payable periodically may be commuted to one or more lump sum payment(s), if the court finds such commutation to be in the best interest of the dependents of the deceased employee and that the party seeking a lump sum payment has the ability to wisely manage and control the commuted award. Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994). Such applications are not granted as a matter of course. Forkum v. Aetna Life & Casualty Insurance Company, 852 S.W.2d 23 (Tenn. 1993). The claimant has the burden of establishing, first, that a lump sum is in his or her best interest and, second, that he or she is capable of wisely managing and controlling a lump sum, but the decision whether to commute to a lump sum is within the discretion of the trial court. Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554 (Tenn. 1992). We have independently examined the record and find that the chancellor did not abuse his discretion in allowing the partial commutation in this case. The judgment is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Joe C. Morris, |
Chester County | Workers Compensation Panel | 09/27/96 | |
| Lisa Hughes v. Mtd Products, Inc., Cub Cadet Division
02S01-9602-CH-00019
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supeme 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. Lisa Hughes, ("plaintiff") has appeal ed from the judgment of the trial court denying her claim for workers' compensation benefits on the grounds that she failed to carry her burden of proof as to any permanent partial disability. On appeal, the only issue presented by plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereafter stated, we find that it does not. Plaintiff was employed as an assembly line worker for MTD Products, Inc. ("defendant"), which were engaged primarily in building lawnmowers. In December 1992 she injured her neck and shoulder while lifting a lawnmower deck onto an assembly line. She was initially seen by Dr. White and then by Dr. Joseph P. Rowland, a neurosurgeon. Dr. Rowland found that her problems were muscular in origin and returned her to work with no restrictions and no permanent impairment on February 15, 1993. In April 1993, plaintiff claimed to have sustained a work-related injury to her low back while lifting a l awnmower frame onto a motor. At that time, plaintiff received outpatient treatment by Dr. Jack Pettigrew, who also referred her to Dr. Larry David Johnson, a local orthopedic surgeon. Dr. Johnson treated her as an outpatient, performing among other things x-rays, a CT scan, and myelogram, all of which were normal. On June 21, 1993, Dr. Johnson released her to return to work and confirmed that plaintiff could return to work for full duty with no permanent impairment on July 22, 1993. 2
Authoring Judge: Per Curiam
Originating Judge:Hon. George Ellis, Judge |
Haywood County | Workers Compensation Panel | 09/27/96 | |
| Vicky Ladd v. Perma-View Processed Glass
01S01-9509-CH-00158
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 her back on December 8, 1989 while working for defendant. The trial judge set the weekly benefit rate at $144.67, ordered defendant to pay certain discretionary costs and awarded plaintiff 35 percent permanent vocational disability. We affirm the trial judge's award of 35 percent permanent vocational disability and remand for further hearing on plaintiff's weekly benefit rate and discretionary costs. Plaintiff was injured at work on December 8, 1989 when a crate hit her in the back, resulting in a contusion of her left shoulder and subsequent symptomatic thoracic outlet syndrome and reflex sympathetic dystrophy. She was evaluated and treated by a number of doctors but has continued to have severe pain and other symptoms. Dr. W. D. Hudson saw plaintiff on the date of the accident and diagnosed brachial plexus contusion. When plaintiff continued to have severe pain, Dr. Hudson determined she had reflex sympathetic dystrophy from trauma to the left brachial plexus nerve fiber and referred her for neurosurgical evaluation and for treatment of chronic pain. He thought her permanent partial impairment was probably between twenty and thirty percent. Dr. Andrew Miller, orthopedic surgeon, treated plaintiff at the employer's request. He prescribed physiotherapy, heat, traction and an exercise program, with no improvement in plaintiff's symptoms. Dr. Miller diagnosed cervical degenerative arthritis at C-4 through C-6 and mild bulging disc at C-4/5, which he did not think were related to her work. Dr. John W. Klemin, chiropractor, diagnosed chronic cervicothoracic strain or sprain complicated by rotary scoliosis and vertebral subluxations resulting in thoracic outlet syndrome and thought the prognosis for recovery was guarded. Dr. Arthur Bond, neurosurgeon, evaluated plaintiff on August 8, 1991 and opined that plaintiff's history was compatible with thoracic outlet syndrome 2
Authoring Judge: Per Curiam
Originating Judge:Hon. Alex W. Darnell |
Montgomery County | Workers Compensation Panel | 09/13/96 | |
| National Healthcorp, L.P. v. James Puckett
01S01-9510-CV-00187
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer filed this complaint asking the trial court to determine whether the employee sustained any permanent partial disability as a result of an incident at work in which he was in an elevator which fell or sped downward for ten floors. The trial court found that plaintiff sustained a work-related injury resulting in temporary disability but failed to meet his burden of proving permanent impairment and therefore was not entitled to permanent partial disability benefits. The court found that certain court-ordered temporary total disability benefits had been paid beyond the employee's period of temporary disability, and ordered the employee to reimburse the employer $3,826.32 for this overpayment. Further, the court ordered the employer to pay medical expenses for authorized physicians and the employee to pay medical expenses for treatment he secured on his own. An issue raised on briefs as to the characterization of benefits so as to affect Social Security payments was withdrawn by employee's counsel at oral argument and will not be discussed herein. We affirm the judgment of the trial court. The employee worked for this employer from 199 until February 1992, when he was involved in an on-the-job accident. On February 19, 1992, while he was in a company elevator, the elevator "fell" or traveled too quickly from the fourteenth to the fourth floor. The employee was tossed about inside the elevator, wrenching his shoulder and neck. The employee was treated by various physicians, some of whom were approved by the employer and some of whom he saw on his own. Dr. Richard Rogers, an orthopedic surgeon, found degenerative changes in plaintiff's cervical spine not caused by trauma. Dr. Arthur Cushman, neurosurgeon provided a second surgical opinion at the court's order and found no permanent impairment.
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Robert E. Corlew |
Rutherford County | Workers Compensation Panel | 09/13/96 |