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| Jayme Bussell v. Promus Hotel Corporation
02S01-9705-CV-00041
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. Plaintiff appeals the trial court's grant of summary judgment to defendant and its finding that her contract of hire with the defendant was made in the State of Mississippi rather than the State of Tennessee.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge:Hon. Wyeth Chandler |
Shelby County | Workers Compensation Panel | 12/01/97 | |
| Iris v. Flowers
03S01-9701-CV-00014
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. _________________________________ Irvin H. Kilcrease, Jr., Special Judge CONCUR: ________________________________ John K. Byers, Senior Judge ________________________________ Adolpho A. Birch, Jr., Justice 2
Authoring Judge: Special Judge Irvin H. Kilcrease, Jr.
Originating Judge:Hon. Arnold Stulce, |
Knox County | Workers Compensation Panel | 12/01/97 | |
| Crowder v. Magic
03S01-9702-CH-00023
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 sustained a herniated disk and underwent two lumbar disk surgeries in 1995. The trial court found the back problem was work related and awarded 35 percent permanent partial disability. We affirm the judgment of the trial court. The Employee is now thirty six years old with seven years of formal education. He has fourteen years work experience in factory assembly for this Employer. Prior to that, he worked at a chicken farm and helped his father cut paper wood. On May 4, 1995, he bent over a box at work and felt something "pop" in his low back. He went to the nurse's station, where a "deep heating rub" was applied and he was given an ice pack. He then went back to work, and he continued to work full time until July 1995. In early July, after returning from the July 4th holiday, he experienced increased low back pain and went to the nurse at work again, where he received another deep heating rub. He testified that the pain in his lower back just kept getting worse and started going down his leg, so that he was unable to walk. On July 23, 1995, he went to his family doctor because of the back pain, but he did not tell the doctor about his injury at work. On August 2, 1995, the Employee was involved in an automobile accident and was treated by the same family doctor. When his back pain did not improve, the Employee had an MRI of his lower spine on September 1, 1995. The MRI revealed "a large posterior herniated disc eccentric to the left at the 5-1 level with encroachment into the central canal with AP narrowing as well as eccentric encroachment into the neuroforamina and nerve root on the left." There were also degenerative disc changes. The Employee testified that he was referred to an orthopedic surgeon and, when he discussed his work history and recent activities with the surgeon, they realized that the herniated disk was work related. He immediately reported this to his Employer. 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Earl H. Henley, |
Knox County | Workers Compensation Panel | 12/01/97 | |
| Harbin v. St. Mary's
03S01-9703-CV-00026
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff was employed by the defendant as a security guard. On July 8, 1993, he was struck by a vehicle in the defendant's garage. There is no dispute that the plaintiff was involved in an accident in the course of his employment. The only dispute is whether the plaintiff failed to show by a preponderance of the evidence that he suffered any permanent disability as a result of the accident. The trial court held the plaintiff did not prove any permanent disability by a preponderance of the evidence as a result of the accident. We reverse the decision of the trial court. The pertinent testimony in the case was the oral testimony of the plaintiff, and the deposition testimony of Dr. Dennis Coughlin1, an orthopedic surgeon; Dr. Gilbert L. Hyde, an orthopedic surgeon; and Joseph Scott Brown2, a chiropractor. The plaintiff, thirty years old at the time of the case, testified he continued to have pain as a result of the injuries he received in the accident. He testified concerning many things he is unable to do because of the pain and stiffness associated with the injuries. He is, however, employed as a security officer with another firm. Dr. Hyde, the plaintiff's witness, saw the plaintiff for purpose of evaluation. He found the plaintiff to have muscle spasms in the low back and other manifestations of injury. Dr. Hyde was of the opinion the plaintiff retained a 5% permanent medical impairment and was of the opinion the impairment was related to the on job injury with the defendant. Dr. Coughlin, the defendant's witness, saw the plaintiff on two occasions -- once for examination and ordering of tests and once to report the results of the tests to him. Dr. Coughlin found degenerative disease of the L4 and L5 vertebrae. The 1 The medical records of Dr. David Fardon were introduced through the Coughlin deposition. Dr. Fardon found no permanent impairment. 2 The trial judge found the testimony of the chiropractor to be unreliable. We agree with that assessment and will not consider the testimony in the record. 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Dale C. Workman, |
Knox County | Workers Compensation Panel | 12/01/97 | |
| Vivian Jeanette Payne v. Sequatchie Valley Coal Corp.
01S01-9610-CH-00214
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Sequatchie County | Workers Compensation Panel | 12/01/97 | |
| Delias v. Philips
03S01-9704-CV-00047
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. This appeal has resulted from a decision of the trial court to award plaintiff, Thomas Delias, 45% permanent partial disability to the body as a whole. On appeal the defendant, Philips Consumer Electronics Company, contends the 45% award is excessive under the evidence. Plaintiff does not have a high school education as he only completed the 8th grade. At the time of the trial, he was almost 6 years of age. He was injured on the job during April, 1992, while working as a router operator. He said a jig fixture jumped off of a pin and the router moved causing his left shoulder to be jerked severely. He was seen at the hospital two days later and eventually came under the care of an orthopedic surgeon who treated him for awhile and then discharged him. Plaintiff testified he did not miss any time from work (he went to school for some period of time) and returned to router operator work but other employees did the heavier router work which involved considerable lifting and/or pushing. He continued the lighter type work and experienced pain while working. He wore a TENS unit about 9% of the time to help counteract the pain. Sometime later his condition began to get worse and the company referred him to another orthopedic surgeon. Plaintiff told the court he was left handed and upon returning to work, he had to use his right hand as it was difficult to lift anything with his left arm. He said he had stopped working in his garden and could not hunt or fish any longer. Ethyl Delias, plaintiff's wife, testified she did any lifting that was necessary around their house; that he had stopped working in their garden; he did not hunt or fish any longer and did not mow the yard. Dr. William T. Youmans, the last surgeon to treat plaintiff, was of the opinion he had a frozen shoulder; that his range of motion was limited; said he had given injections and found plaintiff had a 7% medical impairment to the whole body. He did not recommend surgery at the time since plaintiff was working and earning wages. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Ben. W. Hooper Ii, |
Knox County | Workers Compensation Panel | 12/01/97 | |
| Roddy v. Spring
03S01-9704-CH-00041
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 alleged injury to her back when she lifted a bolt of cloth at work. The trial court found that her back condition was caused by a work related accident and awarded 45 percent permanent partial vocational disability and medical expenses, including those of the treating surgeon, which were unauthorized. We affirm the judgment of the trial court. On Saturday, August 8, 1992, the employee, Robbin Roddy, was inspecting rolls of fabric at work when a co-worker brought her an unusually heavy roll to work with. When she threw the roll up in a bin, her back "just popped." She reported the injury to her supervisor, James Hood, who went with her to the office where they completed an injury report. Hood then sent her home. She was aware that the company posted at the work site a list of three doctors from whom she could choose. On the following Monday she went to the Family Medical Center, to the office of one of those doctors, Dr. Richard R. Jost, where she and her family had been seen in the past for routine medical care. It is uncontested that the employee never saw Dr. Jost for examination, evaluation, treatment or assessment of disability for this injury. For all of her treatment she saw Mr. Robert Wayne Harrison, a certified physician's assistant employed and supervised by Dr. Jost. The record indicates that apparently the employee was accustomed to referring to the physician's assistant as "Dr. Rob." In fact, the record shows that counsel for the defendant occasionally referred to him as "Dr. Harrison." When asked about his role in the treatment of the employee, Mr. Harrison testified that he is "permitted to do all aspects of medical care with the exception of write prescriptions. That's actually been changed by statute at the present, but at the time in question, I guess we're dealing with a record of 1992, so at that time the statute did not allow prescription writing." 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Jeffrey F. Stewart, |
Knox County | Workers Compensation Panel | 11/25/97 | |
| Adams v. Peterbilt
03S01-9603-CV-00031
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff brought this suit in which he alleged he was totally and permanently disabled and that he was entitled to medical benefits from his employer and the Second Injury Fund. The trial judge found the plaintiff had sustained a 6 percent impairment as a result of an on-the-job injury on May 27, 1994. The trial judge dismissed the suit as to the Second Injury Fund because the amount of the disability of the plaintiff from the current injury when combined with previous workers' compensation injuries did not exceed 1 percent permanent total disability. The plaintiff, in this appeal, says the trial court erred in not finding he was permanently and totally disabled as a result of the May 27, 1994 injury and in not awarding him benefits from the Second Injury Fund. The judgment of the trial court is affirmed. The treating physician, Dr. Robert E. Finelli, an orthopedic surgeon, testified the plaintiff had a ruptured disc at the L4-L5 vertebrae. Dr. Finelli did surgery on the plaintiff and treated him until September 2, 1994. Dr. Finelli returned the patient to work and found he had sustained a 1 - 12 percent permanent medical impairment as a result of the injury. The plaintiff had undergone two previous back surgeries and Dr. Finelli considered these in determining the medical impairment from the last injury. Dr. Finelli was of the opinion that if the plaintiff returned to heavy work he would be at risk for a possible ruptured disc. It was his further opinion that if he did medium work the risk of further back injury was low. Dr. Gilbert Hyde, an orthopedic surgeon, saw the plaintiff on July 28, 1995 for the purpose of evaluating his disability. Dr. Hyde found the plaintiff to be suffering a 22 percent medical impairment as a result of the injury of May 27, 1994. Dr. Hyde 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Wheeler Rosenbalm, |
Knox County | Workers Compensation Panel | 11/25/97 | |
| Elsie Hopkins v. San Antonio Shoe, Inc.
01S01-9610-CH-00216
This Workers' Compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. On May 2, 1994, the plaintiff, Elsie Hopkins, fell at work and injured her right shoulder. At trial and on appeal the defendant, San Antonio Shoe, Inc., accepted the claim as compensable. The trial court awarded thirty-five percent (35%) permanent partial disability to the body as a whole and assessed a bad faith penalty of twenty percent (2%) of the temporary total disability benefits due in accordance with Tennessee Code Annotated _5- 6-225(k). The defendant employer contends on appeal the evidence preponderates against a vocational disability award of thirty-five percent (35%) permanent partial disability to the body as a whole and any finding of bad faith. The plaintiff requests an award of post judgment interest. For the reasons stated in this opinion, the judgment of the trial court is affirmed. The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tennessee Code Annotated _ 5-6-225(e)(2). Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, where the issues involve expert medical testimony which is contained in the record by deposition, as it is in this case, then all impressions of weight and credibility must be drawn from the contents of the depositions, and the reviewing court may draw its own impression as to weight and credibility from the contents of the depositions. Overman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676-77 (Tenn. 1991). Plaintiff, Elsie Hopkins, is 48 years of age and has a tenth grade education . Her prior work history consists of repetitive work in the garment and shoe industry and she has no vocational training. She was employed by the defendant, San Antonio Shoe, Inc., for approximately 8 years when she injured her right shoulder on May 2, 1994. She reported the injury to her employer and was taken by her supervisor, Paul Darrow, to be seen by Dr. Jack Milam. Dr. Milam treated her conservatively and placed her arm in a sling for 6 to 8 weeks. 2
Authoring Judge: W. Michael Maloan, Special Judge
Originating Judge:Hon. Jeffrey F. Stewart, |
Franklin County | Workers Compensation Panel | 11/14/97 | |
| Christopher S. Baker v. Middle Tn. Acoustics, Inc., et al.
01S01-9702-CH-00035
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The plaintiff/appellant, Christopher Steven Baker, appeals from the trial court's decision holding that he failed to prove that he sustained an injury while working for the defendant/appellee, Middle Tennessee Acoustic, Inc. The outcome of the case hinges primarily on a determination of the plaintiff's credibility. While our review is de novo, it is accompanied by a presumption of the correctness of the trial court's findings. Moreover, when the trial court has made a decision that hinges upon the credibility of the witnesses, it will not be disturbed on appeal unless there is in the record clear, concrete, and convincing evidence to the contrary. And, too, considerable difference is to be accorded the trial court where issues of credibility and weight of oral testimony are involved. Townsend v. State, 826 S.W.2d 434, 437 (Tenn. 1992), Airline Construction, Inc. v. Barr, 87 S.W.2d 247, 264 (Tenn. App. 199). The record is filled with contradictory and conflicting evidence regarding whether the plaintiff injured himself as he claims. The plaintiff, at trial, testified that he injured himself on Friday, June 2, 1995. Yet he alleges in his complaint that the injury was on June 5, a Monday. Records from Nashville's General Hospital reflect that he once gave June 3 as the date of his injury and later gave June 5 as the date. The plaintiff told Dr. David Gaw it was June 5. Confusion over the exact date of an injury is not unusual and failure for a worker to recall the exact date or recalling an incorrect date is usually immaterial to the outcome of the case. But the plaintiff himself emphasizes the exact date. It is important for him to prove it happened on a Friday. Wallace Harris, owner of the employer corporation, testified that the plaintiff told him he, the plaintiff, hurt himself while moving. This, of course, directly contradicts the plaintiff's testimony. But it also sheds some light on why the June 2 date surfaced at trail. By proving that he hurt himself on a Friday, the plaintiff proves that he did not hurt himself over the weekend when he moved. Ronnie Stroud was working with the plaintiff when the plaintiff says he injured himself. The plaintiff testified he told Stroud he hurt his back and that the two of them finished the work day with Stroud doing the overhead work with the plaintiff handing Stroud the materials. Stroud testified at trial that the plaintiff never complained about being hurt and that he, Stroud, never observed the plaintiff being hurt. The plaintiff had a previous work-related back injury. He denies that it was bothering him before June 2 or June 5, 1995. Yet he was scheduled for a Social Security disability examination with Dr. Gaw before June 2 or June 5. If he had no manifestation of disability - 2 -
Authoring Judge: Robe R T S. Br Andt , Senior Judge
Originating Judge:Hon. Ellen Hobbs Lyle, |
Davidson County | Workers Compensation Panel | 11/14/97 | |
| Willie M. Nutt v. Angelica Uniform Group
01S01-9609-CH-00195
This Workers' Compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Willie M. Nutt, appeals the judgment of the trial court in dismissing her complaint as being barred by the statute of limitations. For the reasons stated in this opinion, we affirm the judgment of the trial court. Willie M. Nutt worked for the defendant, Angelica Uniform Group, from 1982 to 1989 when she quit due to pain in her shoulders and back. She then worked for Tennessee River for several months, but again had to quit due to the physical inability to do her job. In November 1989, she was advised by Dr. Howard Fuchs that her shoulder problems were work- related. With the encouragement of the plant manager, and the assurance of light duty, Ms. Nutt returned to work for Angelica Uniform in July, 199. She was able to handle small parts for a few days, but her shoulder symptoms returned when she was assigned to heavier work. She was terminated because she was unable to perform her job. Plaintiff filed suit on January 28, 1991, and alleged on or about July 31, 199, she became aware she had suffered an injury to her shoulders. The defendant answered and pled the statute of limitations as a defense. After a trial on October 2, 1994, the trial court took the matter under advisement and entered judgment on December 16, 1994, dismissing plaintiff's cause of action. The trial court found: The shoulder problems suffered by Ms. Nutt, however, were long standing problems and were not caused by a work-related injury during her brief period of employment at Angelica's plant in July of 199. The Court further finds that Ms. Nutt was aware of her shoulder problems and aware that those shoulder problems were work related several years before the complaint in this action filed. The statute of limitations applicable to her claims, therefore, expired prior to the filing of this action on January 28, 1991, and Ms. Nutt's action was untimely and barred by the statute of limitations. The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tennessee Code Annotated _ 5-6-225(e)(2). Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference 2
Authoring Judge: W. Michael Maloan, Special Judge
Originating Judge:Hon. William B. Cain |
Wayne County | Workers Compensation Panel | 11/13/97 | |
| J. C. Mcdowell v. United Technologies/Carrier Corp.
01S01-9703-CH-00045
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. This complaint in Chancery was filed November 9, 1995 seeking benefits for a back injury which the plaintiff alleged he suffered on March 14, 1995 while attempting to move a heavy tank. The employer defendant answered in course, alleging that the plaintiff had a degenerative back condition of many years duration and denying the plaintiff suffered a compensable injury as alleged or that it had notice of any injury. The trial judge referred the case to the Clerk and Master pursuant to RULE 53, TENN. R. CIV. P.1 A judgment was entered finding that the plaintiff sustained a compensable injury on March 14, 1995 resulting in a 3 percent permanent partial disability to his whole body, and benef its were awarded accordingly. The defendant appeals and presents the issue of whether the evidence preponderates against the finding of a compensable injury. We hold that it does not for reasons hereafter recited, and therefore affirm the judgment. The plaintiff is 52 years old and has been employed at Carrier since 1972. He had three prior back surgeries in 1975, 1976, and 1985. On March 14, 1995, while working on a chiller tank, he twisted his body, and, as he stated, "I hurt myself." He did not report for work the following day, but on March 16, 1995, he went with a shop steward to see Joel Holt, the Safety Director. He testified that he reported to Holt that he had injured his back and requested some time off. He saw his family physician who said the pain was not work related. In course, he was referred to Dr. George Lien, a neurosurgeon who performed surgery on May 7, 1995. The plaintiff returned to work on August 23, 1995 with restrictions. 1A Spec ial Maste r may b e appo inted in any ca se, and his/her du ties ma y be particula rized. W e ass um e the Clerk and M aste r was appo inted as S pec ial Ma ster to hear and r epo rt the t estim ony, with recommendation, but there is no Appointing Order in the record. There are two relevant documents in the record. The first such is a Finding of Fact signed by the trial judge. The second is an Order reciting that "the cause came on to be heard before the Honorable Charles D. Haston, Judge., etc. who referred the matter to J. Richard McGregor, Special Master. Thereafter, the court . . . filed a finding of fact . . . which is incorporated herein . . ." This Order [i.e. Judgment] is signed, not by the trial judge, but by J. Richard McGregor. "In the absence of the Judge, J. Richard Mc Gregor, sitting as Chancellor pro tem ." So far as the record reveals the Spe cial Master filed no repo rt, and the trial judge thus made findings o f fact without hearing any proof. The anomaly continues: the Special Master, as Judge Pro Tem, also entered the final judgment, thereby approbating his prior action. The parties make no issue of this `unusual' procedure, and we therefore treat the case as one heard in compliance with RULE 53.4. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Charles D. Haston, |
Warren County | Workers Compensation Panel | 11/10/97 | |
| Margaret Williamson v. Clarksville Memorial Hospital
01S01-9703-CV-00066
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 judge found that the plaintiff had a 1 percent anatomical impairment which, extrapolated by the multiplier of 2.5, resulted in a permanent partial disability of 25 percent and awarded benefits accordingly. The employer appeals, insisting that there is no basis for a finding of an anatomical impairment of 1 percent.1 The thrust of the Hospital's argument is directed to the alleged discrediting of Dr. Fishbein's testimony by the Chancellor.2 It is conceded that the plaintiff, a nurse, sustained a neck and shoulder injury on July 8, 1993 while lifting a patient at the defendant Hospital. She was initially seen by Dr. Douglas Porter, an orthopedist of Clarksville, who referred her to Dr. G. B. Lanford, a neurosurgeon, whom we assume practices in Nashville.3 Dr. Lanford testified that the plaintiff had some disc bulging and spondylosis, but no nerve root compression and no operative problems. Because of continuing arm and back pain Dr. Lanford assessed her anatomical impairment at 5 percent. Dr. Richard E. Fishbein, orthopedist, practicing in Antioch, testified that at the request of plaintiff's counsel he examined the plaintiff on July 7, 1994. Before that time he had been furnished with copies of Dr. Porter's and Dr. Lanford's evaluations, and had reviewed the x-ray and myelogram reports. He referred to Dr. Porter's report that the plaintiff had suffered an acute herniation of a disc; he found exquisite tenderness over the para cervical muscles, weakness of grip strength, "and basically I noted that she had a herniated disc as noted, and that her history and physical findings were consistent with it." Dr. Fishbein opined that she had a 1 The record consists only of the depositions of Dr. Lanford and Dr. Fishbein, and the memorandum of the Chancellor. 2 As observed by a different Panel on another occasion, the plaintiff, in this Montgomery County case, travelled a long distance in employing Dr. Fishbein, overlooking many dozens of orthopedic specialists in the process. 3 Neither his deposition nor his CV reveal this information.
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. James E. Walton, |
Williamson County | Workers Compensation Panel | 11/10/97 | |
| Mary A. Clark v. Micropore, Inc. & Berwind Industries Management
01S01-9703-CH-00062
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. This complaint was filed April 17, 1995, alleging that the plaintiff had been employed at Porelon since 1974 and that in 1993 she began to develop pain in her right shoulder and arm which was evidence of a gradually developing compensable injury. Micropore, Inc. (formerly Porelon) filed its answer on June 7, 1995, alleging that it was sold on May 6, 1994 with a resulting change in workers' compensation insurers. It denied having notice of any claimed injury and affirmatively alleged that it is not liable for "any benefits due plaintiff which accrued on or after May 6, 1994." The plaintiff amended her complaint on June 21, 1995 and joined Berwind Industries Management Company as a defendant. She alleged that in 1993 and until May 1994 the manufacturing plant known as Porelon, where she worked and developed the gradual injury, was owned by Johnson Worldwide Associates, Inc. ["JWA"], which sold the plant to Berwind in May 1994. The plant continued to operate under the name of Micropore, Inc., allegedly a subsidiary of Berwind. Micropore, Inc. answered the amended complaint, acknowledging the sale of the plant by JWA to Berwind in May 1994. It again denied that, although the plaintiff was regularly employed by Porelon for 2 years and was so employed May 1994, when the change in ownership occurred, the plaintiff had developed a gradually occurring injury as alleged. It admitted that on November 3, 1993, the plaintiff reported to management that she had been diagnosed with fibromyosis, but that she did not relate that the condition was work related. Berwind answered the amended complaint on July 26, 1995, asserting that the plaintiff was last employed on March 6, 1995, and that it was not liable for benefits under the gradual occurring rule. The Chancellor ruled that the plaintiff's injuries were gradual "and manifested themselves in May 1993, but they did not progress to the point of making the plaintiff unable to work until March 3, 1995, and therefore March 3, 1995, under Tennessee 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Vernon Neal, |
Putnam County | Workers Compensation Panel | 11/10/97 | |
| John Shultz v. City of Lawrenceburg, et al .
01S01-9701-CV-00017
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, City of Lawrenceburg, contends (1) the evidence preponderates against the trial court's finding of a compensable injury by accident arising out of and in the course of employment, (2) the evidence preponderates against the trial court's finding that the employee's compensation rate is $38.8, (3) the evidence preponderates against the trial court's award of temporary total disability benefits from August 5, 1994 through October of 1995 and (4) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, John Schultz, was forty-nine years old at the time of the injury. He has an eighth grade education and a GED. He has worked as a heavy equipment operator since 1968. On January 21, 1994, while working for the employer, he injured his neck and back while operating a backhoe as a jackhammer on frozen ground. He injured his left shoulder again on August 5, 1994 while working for the employer and running out of a hole filling with water. He attempted to work the next day before going to a doctor's appointment, then was totally disabled until October 18, 1995, when he reached maximum medical improvement. The claimant was treated or evaluated by a number of physicians and assigned permanent impairment ratings of from six to ten percent from the injuries which the physicians related to the work he was performing. He continues to have neck and shoulder problems. The record contains conflicting documentary evidence as to the employee's average weekly wage, but the employer had actually paid benefits of $38.8 from the August injury until the date of maximum medical improvement, for his temporary total disability. The trial court awarded no additional temporary total disability benefits, but did award the claimant's reasonable and necessary medical expenses and permanent partial disability benefits based on thirty-two percent to the body as a whole, payable in a lump sum. The claim against the Second Injury Fund was dismissed. 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). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jim T. Hamilton, |
Lawrence County | Workers Compensation Panel | 11/10/97 | |
| Jimmy R. Turner v. Travelers Insurance
01S01-9610-CV-00203
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Sequatchie County | Workers Compensation Panel | 11/10/97 | |
| Roxie Moorehead v. Lincoln & Donalson Care Center
01S01-9703-CV-00049
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issue is this case is whether the replacement of the plaintiff's right knee was causally related to a compensable accident within the purview of applicable law. The trial judge found the issue in favor of the plaintiff and awarded benefits based upon a determination that she had an 85 percent permanent partial disability to her right leg. The employer appeals, insisting that the judgment is contrary to the preponderance of the evidence. Our review of the findings of fact made by the trial court 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. CODE ANN. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 584 (Tenn. 1991). The plaintiff is a 62 year old woman of limited education and skills. She was employed as a nursing technician1 at the Care Center where she began work in 1991. On April 17, 1994, a patient whom she was attending kicked her right knee, which caused momentary pain. She continued to work for three weeks during which time her knee became stiff and painful. She was seen by Dr. Michael Siaw, an orthopedic specialist who recommended conservative treatment. She did not respond, and Dr. Siaw scheduled her for a MRI which revealed an oblique tear of the lateral meniscus. Dr. Siaw believed this injury was consonant with the history the plaintiff gave him of having been kicked on the knee by a patient at the nursing home. Eventually, it became necessary to correct the tear arthroscopically. This procedure was performed on July 5, 1994, and successfully so, although pre- existing osteoarthritis continued to cause the plaintiff considerable pain. The plaintiff returned to work, and the arthritic condition worsened, according to her. Dr. Siaw saw her on June 21, 1996 and discovered that she had a total knee replacement 1 Being a nursing technician involves lifting, bathing, feeding, and dressing patients. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Lee Russell, |
Moore County | Workers Compensation Panel | 10/31/97 | |
| Christopher v. Sockwell
01S01-9703-CV-00047
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. At the trial, the only issue was the extent of the claimant's permanent partial disability. In this appeal, the employer's insurer, Argonaut, contends the trial judge (1) erred in accepting the opinion testimony of an examining physician over that of the treating physician and (2) erred in using a multiplier of 4.9 times the medical impairment to determine the claimant's permanent partial disability. As discussed below, the panel has found no reversible error but concluded the award of permanent partial disability benefits should be modified. The employee or claimant, Atkins, is forty-four years old with a college degree in social science work. He has worked as an instructor and hearing officer with the state of Tennessee, as a supervisor with the United States Department of Commerce, as a machine operator and as a forklift operator. On April 18, 1994, Atkins stepped off a forklift and fell, injuring his back and bruising his right side from his shoulder to his foot. He was referred to Dr. David McCord, who performed disc surgery at L4-5 on May 23, 1994. When the claimant's condition did not improve, the doctor performed fusion surgery. At the time of the trial on August 31, 1996, the fusion had not healed and the claimant had not been released by Dr. McCord to return to work. The doctor assessed the claimant's permanent impairment at fifteen percent to the whole body. At the claimant's request, Dr. David W. Gaw conducted a physical examination of the claimant and assessed his permanent impairment at eighteen percent to the whole body. At the insurer's request, Dr. Michael James McNamara conducted a physical examination and assessed his permanent impairment at ten percent to the whole body. From the testimony of the claimant, which the trial judge found to be credible, and the other evidence, the trial judge found the opinion testimony of Dr. Gaw to be "the most convincing." He then multiplied the eighteen percent impairment by 4.9, after stating, "I agree with counsel that the multipliers 5 and 6 are out," and awarded permanent partial disability benefits based on 88.2% to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6- 225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. James E. Walton, |
Montgomery County | Workers Compensation Panel | 10/31/97 | |
| Handley v. Travelers
03S01-9611-CH-00113
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, Merlin Stephen Handley, has appealed from the action of the trial court in dismissing his claim for benefits. The Chancellor held plaintiff had failed to carry the burden of proof in establishing his heart attack was caused by his work activity. Plaintiff, 44 years of age, was employed by defendant, Canteen Food Services, Inc., as a route salesman. His duties required him to stock and service vending machines on an established route. On December 13, 1994, he had moved a large number of soft drink cases (75-8) prior to servicing vending machines on his route. This work was at a time when the building where he was working was particularly warm. He began to feel unusually short of breath; had some pain in his chest and tingling under his arm. After some period of time, he decided to go to a doctor who concluded he was having or was about to have a "full blown" heart attack. He was immediately admitted to a hospital where he remained for less than one week. After being discharged, he was off work for about six weeks. Sometime after returning to work, he continued to experience further problems and eventually terminated his employment with defendant. He found employment involving desk work where his income at the time of trial was somewhat higher than his earnings as a route salesman. Plaintiff testified he had never experienced any heart problems prior to his heart attack; that his mother had a heart attack in her fifties and he had a couple of uncles who died at a young age from heart disease. He also admitted he had smoked since the age of twenty and was a heavy smoker consuming one and a half to two packs a day. The only expert medical testimony was the deposition of Dr. Gregory Brewer, a cardiologist who treated plaintiff. His diagnosis was acute myocardial infarction. He 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Earl H. Henley, |
Knox County | Workers Compensation Panel | 10/22/97 | |
| Emily Mills v. Baptist Hospital of East Tennessee, Inc.
03S01-9611-CV-00110
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 found the plaintiff had sustained a 1 percent vocational impairment to her left lower extremity as a result of an injury to her knee on September 25, 1991. The trial court further found the plaintiff reached maximum medical improvement on March 3, 1993. Additionally, the trial court found the defendant was not liable for medical bills incurred by the plaintiff after March 3, 1993. The plaintiff appeals and claims the trial court erred in limiting the recovery to ten percent, that the period of temporary total disability should have extended until April 15, 1995, and that the trial court erred in holding the defendant was not liable for medical bills after March 3, 1993. The defendant raises as an issue the claim that the plaintiff has failed to show she sustained any disability as a result of her injury. We find the judgment of the trial court should be affirmed in all things except for the award of ten percent permanent vocational disability to the lower extremity. We find from the record the plaintiff is entitled to recover at the rate of 25 percent for the injury to her left lower extremity. The plaintiff was age 51 at the time of the trial; she had a high school diploma and was a certified nursing assistant. On September 25, 1991, she fell while working for the defendant. The medical evidence in this case was given by Dr. William M. Hovis, an orthopedic surgeon. Dr. Hovis found the plaintiff had a pre-existing arthritic condition in both knees. Dr. Hovis testified this can be exacerbated or accelerated by trauma. Dr. Hovis treated the plaintiff for the injury to her knee by various means. He testified she had reached maximum medical recovery on March 3, 1993. Dr. Hovis was of the opinion the plaintiff had a 15 percent impairment to her left leg, with five percent of this caused by the fall and the remainder by the arthritic condition. W hether Dr. Hovis placed restrictions on the plaintiff because of her injury when she returned to work is less than clear. He testified she should refrain from climbing, squatting and kneeling. Dr. Hovis testified the restrictions were based on her overall condition. 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Dale C. Workman, |
Knox County | Workers Compensation Panel | 10/21/97 | |
| Alma Jean Grayson v. Healthtrust, Inc., The Hospital Co.
01S01-9607-CH-00153
Authoring Judge: Senior Judge James L. Weatherford
Originating Judge:Hon . |
Rutherford County | Workers Compensation Panel | 10/21/97 | |
| Tracy Jenkins v. Bridgestone/Firestone, Inc.
01S01-9607-CV-00144
Robert S. Brandt, Senior Judge
Authoring Judge: Hon. Robert E. Corlew, III,
Originating Judge:Hon. Robert E. Corlew, III, |
Rutherford County | Workers Compensation Panel | 10/21/97 | |
| Richard Hitchcock v. WaUSAu Insurance Companies, et al.
01S01-9612-CH-00250
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 Second Injury Fund (the fund) contends (1) the evidence preponderates against the trial court's finding that the claimant is permanently and totally disabled, and (2) that it was error to approve a settlement between the employee and employer under the circumstances. The claimant contends the objection to the settlement comes too late. As discussed below, the panel has concluded both judgments should be vacated and the case remanded for further consideration. The employee or claimant, Hitchcock, is forty-two and a high school graduate. On October 14, 1993, he suffered a compensable back injury while employed as a warehouseman for the employer, Service America. He has since had three back operations. The operating surgeon has released him to return to work with lifting, twisting and bending restrictions and assigned a permanent impairment rating of twelve percent to the whole body. On September 5, 1995, the trial court approved a settlement between the claimant and his employer, whereby the claimant received permanent partial disability benefits based on forty-five percent to the body as a whole, paid in a lump sum. The fund did not participate in the settlement. The claimant's return to work has been complicated by two pre- existing conditions, blindness in one eye and limited side vision in the other, and a prior carpal tunnel release. A vocational expert testified the claimant is capable, in his disabled condition, of performing medium or light sedentary work. At the time of the trial, the claimant was in fact employed by Opryland as a cashier. After a trial in which the Second Injury Fund was the only defendant, the trial court found the claimant to be permanently and totally disabled and found the fund liable, pursuant to Tenn. Code Ann. section 5-6- 28(a), for benefits at the claimant's compensation rate from the date the claimant reached maximum medical improvement from the injury until the claimant reaches age sixty-five. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the evidence to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Robert S. Brandt, |
Davidson County | Workers Compensation Panel | 10/08/97 | |
| Wilburn v. Boyle
03S01-9611-CH-00111
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff below appeals the trial court's dismissal of his complaint, holding that the plaintiff had not met his burden of proving that he had sustained a permanent vocational disability as a result of his work-related accident. We affirm the trial court's judgment. The plaintiff offered the testimony of himself, his brother, Bobby W ilburn; his parents, Robert and Ruth Wilburn; and Sondra Brown, the record keeper for Med- One, where plaintiff originally received medical treatment. He also submitted the deposition of plaintiff's treating physician, Dr. Jim Brasfield, and the medical report of an examining physician, Dr. Calvin Johnson, along with other documentary exhibits. The defendant offered the testimony of Brian Looney, who had been plaintiff's supervisor at Aquamine; two co-workers of the plaintiff at Aquamine, Gerald Holmes and Paul Pyle; and Robert Rinehart, the manager of Aquamine at the time of these events, as well as documentary evidence. Parties disputed whether the date of the accident was September 25 or 29, 1993, but it was eventually stipulated that adequate notice was given. Plaintiff, Mr. Looney and Mr. Pyle were assembling a pallet rack, when the plaintiff's hand was squashed between the pallet rack and the wall. Plaintiff testified that he jerked his hand out, but Mr. Pyle and Mr. Looney both testified that Mr. Looney immediately pulled the rack back, releasing the plaintiff's hand. Plaintiff further testified that he began to feel pain in his shoulder within ten to fifteen minutes after the incident and that he complained to his co-workers about it. However, all of the defendant's witnesses testified that he did not mention any shoulder pain to them until approximately three weeks after the accident. Plaintiff continued to work very long hours until October 1, 1993, as the defendant was moving from its location in Bristol, Virginia to a new office in Bristol, Tennessee. The accident occurred during the move. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. John S. Mclellan, III, |
Knox County | Workers Compensation Panel | 10/08/97 | |
| Christopher v. Sockwell
03S01-9701-CH-00005
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. Both parties filed motions for summary judgment in this case wherein the deceased was found dead in his truck, having died, according to the Certificate of Death, of "natural causes," not otherwise defined. The appellants conceded that the cause of death of their decedent, Mr. Arons, was unknown, and it was essentially upon this basis that the claim for benefits was denied. The surviving dependents of Mr. Arons appeal and present for review the propriety of summary judgment "when a worker is found dead at his post with no proof of the cause of death." Mr. Arons was 44 years old when he died on November 19, 1993. The appellant is his second wife, to whom he was married in 1973. They had one child, Nichole, who was born in 198. Mr. Arons and his first wife had four children. The family was dysfunctional, with the father being completely estranged from these children for a variety of causes, apparently attributable to drug and alcohol abuse. His second marriage was not idyllic; he abused alcohol to the extent he required hospitalization and, on occasion, his wife sought an order of protection. He was an inveterate cigarette smoker -- forty to sixty per day for 15 years -- and his eating habits were unusual in that he ate only one meal--breakfast--each day, snacking on junk food thereafter. His daughter, Nichole, was injured in a serious traffic accident on October 1, 1993 and his request for time-off from work was granted. He returned to work on November 3, 1993 and was found dead in his truck on November 19, 1993. After he returned to work, the decedent performed his duties without incident. He was not required to load, unload, supervise or do anything except drive. He had not engaged in any strenuous activity and had no altercations. He had made no complaints about illness and had never been treated for cardiovascular disease. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Sharon J. Bell |
Knox County | Workers Compensation Panel | 09/30/97 |