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| Fannie B. Carter v. National Health Care Center, et al.
01S01-9704-CH-00093
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 of fact and conclusions of law. In this two-sided appeal, the plaintiff contends that the trial court erred in denying the recovery of incurred medical expenses; the defendant contends the trial court erred in granting the plaintiff temporary total benefits and permanent partial disability benefits. The focus of this dispute is plaintiff's employment application wherein, the defendant contends it was not correctly filled out by the plaintiff, and was materially misleading, and therefore the plaintiff is estopped from claiming benefits. In accordance with T.C.A. _ 56-225(e), the standard of review in this case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings. It is the plaintiff's burden to show by the preponderance of the evidence that the evidence is otherwise in relation to the trial court's denial of medical benefits; likewise, it is the burden of the defendant to show that the court erred in granting the Plaintiff both temporary total benefits and permanent partial benefits. The panel concludes that the trial court's judgment approving temporary total benefits and permanent partial benefits was correct and should be affirmed. The panel, however, reverses the trial court in the denial of the medical benefits of two of plaintiff's treating physicians. Plaintiff, age 62 at the time of the trial and a divorced mother of six children has an eighth grade education and vocational training as a nurse's aide. Her first employment was domestic work in the homes of the other people and later in commercial pressing. Subsequently, the plaintiff worked for Genesco where she built and inspected shoes. During her employment with Genesco, plaintiff injured her neck and left her employment there. As a result of this injury at Genesco, plaintiff underwent surgery by Dr. Arthur Cushman for a ruptured disc. At the trial plaintiff testified that Genesco had told her she did not qualify for workman's compensation benefits. Later, however, plaintiff acknowledged that she hired an attorney and brought suit against Genesco for workman's compensation benefits. She was successful in obtaining benefits. 2
Authoring Judge: Hamilton
Originating Judge:Hon. F. Lee Russell |
Carter County | Workers Compensation Panel | 04/01/98 | |
| Deborah Ellis v. Nat'L. Union Ins. and Sue Ann Head
03S01-9705-CH-00051
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 employer's insurer and the Second Injury Fund contend the evidence preponderates against the trial court's finding that the employee's asthma is compensable; and the employer's insurer contends the condition is not permanent. As discussed below, the panel concludes the judgment should be affirmed. At the time of the trial, the employee or claimant, Debra Ellis, was 44 years old. She has a high school education and some office and computer training, but has never done office work. She began working for National Union's insured, F. L. Industries, in 1971. Before that, she had worked for short periods of time as a cashier in a grocery store, as a sewing machine operator and in a beauty shop. She has worked for the employer as a packer and loader of electrical connectors and outlets. She ran a machine called an autobagger in the employer's Focus department when she became disabled to work because of asthma. The claimant was in good health when she began working for the employer at the age of 19, except for some upper respiratory problems from allergies during the spring and fall of the year. Since then, she has had pneumonia three times and two back injuries. She has received prior workers' compensation awards totaling eighty-eight and one-half percent to the body as a whole, but had returned to work following those illnesses and injuries without any respiratory restrictions. On April 11, 199, the claimant developed facial redness and swelling at work. Her symptoms disappeared and she returned to work the next day, but her symptoms returned after she began working. When her symptoms worsened to the point where one of her eyes swelled nearly shut and she felt as if she were sunburned, she was referred by the company nurse to a doctor, who hospitalized her. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Earl H. Henley, |
Knox County | Workers Compensation Panel | 04/01/98 | |
| Hubert. Scott v. Kimberly-Clark Corporation
02S01-9709-CH-00077
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. In this case, the trial court found that the plaintiff suffered an injury to his back during the course and scope of his employment with the defendant. The trial court awarded the plaintiff 25 percent permanent partial disability to the body as a whole for the injury to the lumbar spine. The trial court also determined that the plaintiff's claim for the alleged hernia injury was not compensable under Tenn. Code Ann. _ 5-6-212(a). The defendant appeals and says that the trial court erred in determining that the plaintiff sustained 25 percent permanent partial disability to the body as a whole. The plaintiff appeals and says that the trial court erred in determining that the hernia injury was not compensable. We affirm the judgment of the trial court.
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Floyd Peete, Jr., |
Scott County | Workers Compensation Panel | 03/31/98 | |
| George Randall Bailey v. U.S.F.&G. & Institutional Distributors
02S01-9704-CV-00025
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 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 the plaintiff to be 15 percent permanently partially disabled on account of "emotional or behavioral symptoms." The plaintiff appeals, insisting that the preponderance of the evidence requires a greater award. We disagree, and accordingly affirm the judgment. On March 4, 1996, the plaintiff was injured when struck on the head by falling cartons of pizza dough. A CAT scan revealed no cranial pathology, but owing to his continuing complaints, the plaintiff was extensively treated and examined by Dr. R. A. Tyrer, Dr. Robert Greene, Jr., and Dr. Glenn Barnett, II, neurosurgeons; Dr. Robert Pusakulich, a clinical psychologist; and other experts. The neurologists administered various tests, including an MRI of the brain, MRI of the lumbar spine, MRI of the cervical spine, and an MRI of the head. A host of x-rays, a bone scan and a spinal tap completed the diagnostic testing. These experts found no disability. Dr. Pusakulich believed that the plaintiff was suffering from a "great deal of financial overlay;" so did Dr. Barnett. Dr. Pusakulich also believed the plaintiff demonstrated a remarkable psychogenic overlay, as evidenced by his complaint of double vision that "he saw double with both eyes open and one eye closed," a neuroanatomical impossibility. The plaintiff was referred to Dr. Tewfik E. Rizk, of the St. Joseph Hospital Rehabilitation Center, by his attorney. On his initial examination, Dr. Rizk testified that the plaintiff had a slow, slurred speech, memory loss, and was limping on the left side. His diagnosis was post-traumatic closed-head injury syndrome with left-side hemiparesis. He disagreed with the conclusions 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. William B. Acree, Jr. |
Weakley County | Workers Compensation Panel | 03/30/98 | |
| Pamela D. Smith v. Health Tech Affiliates, Inc.
02S01-9611-CV-00099
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 filed suit on February 1, 1995 and alleged she had sustained an injury to her foot when a portion of a wall fell upon her as she was working for the defendant. On December 13, 1995, the plaintiff amended her complaint to allege she had suffered psychological injury as a result of the accident. On August 13, 1996, the trial judge entered a judgment dismissing the complaint. The pertinent portion of the judgment is as follows: After duly considering the testimony and the evidence and considering the credibility of the persons who testified, the court finds that the plaintiff failed to carry her burden of proof; that the alleged psychiatric or psychological injuries were not caused by the plaintiff's work accident; that the plaintiff is not entitled to any workers' compensation benefits for her alleged psychiatric or psychological injuries; that with regard to the injury to her foot or toe caused by the accident, the defendant paid all the plaintiff's medical expenses to which the plaintiff was entitled; that the plaintiff lost time from work from January 13, 1995 to March 13, 1995 as the result of the injury to her foot and she was paid temporary total disability benefits at the rate of $198.4 per week for this period of time; that the plaintiff was paid all the temporary total disability benefits to which she was entitled; and that the plaintiff is not entitled to any additional temporary total disability or other workers' compensation benefits as the result of the accident on January 12, 1995. The determination of the credibility of the witnesses who testified before the trial judge was solely within the judge's discretion. The finding of the credibility of the witnesses is not reweighed on appeal. State, ex rel. Balsinger v. Town of Madisonville, 435 S.W.2d 83 (Tenn. 1968). We note, however, that there were many inconsistencies in the record, both in oral testimony, in deposition testimony, and in other documents filed, showing the plaintiff had made different statements at different times concerning the accident. For example, she stated at one time a wall fell upon her and a patient leaving them covered in debris. At another time, she said a portion of the wall fell upon her. The evidence shows a piece of wood which was approximately 2 feet long and 6 inches wide fell and struck her toe. During the time the plaintiff was drawing temporary total disability, she took a job with another company. The plaintiff's deposition was taken on September 7, 1995, and she testified then that she had not worked anywhere since her accident. At trial, the plaintiff admitted working while she drew disability. The plaintiff testified she knew she could not work but that she needed the money. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Kay S. Robilio, |
Smith County | Workers Compensation Panel | 03/30/98 | |
| Danny Mitchell v. Aetna Life & Casualty Ins. Co., et al
02S01-9706-CV-00053
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge:Hon. Julian P. Guinn, Judge |
Henry County | Workers Compensation Panel | 03/30/98 | |
| Walter Austein v. Riverwood Int. USA, Inc.
02S01-9704-CH-00037
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. The sole issue on appeal is whether the one-year statute of limitations under T.C.A. _50-6-203 ran prior to the filing of the lawsuit. This marks the second appearance of this case before this panel. In Austein v. Riverwood International USA, Inc., No. 02S01-9507-CH-00059 (Tenn. Work. Comp. App., February 23, 1996), this panel found that the trial court erred in granting summary judgment on the statute of limitations issue because issues of material fact existed concerning both the date the statute of limitations began to run and the estoppel issue. The case was remanded to the trial court for trial on the merits. Plaintiff again appeals the trial court's finding that the statute of limitations ran before he filed this action.
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge:Hon. D. J. Alissandratos |
Shelby County | Workers Compensation Panel | 03/30/98 | |
| Betty A. Primm v. Kantus Corp., et al.
01S01-9705-CV-00120
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Appellate review requires that we presume that the judgment of the trial court is correct. RULE 13(d), T. R. A. P. We indulge no other presumptions, but look to see where the preponderance of the evidence lies.
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Lee Russell |
Marshall County | Workers Compensation Panel | 03/27/98 | |
| Bobby Riddick v. Jackson Metal Services
02S01-9703-CV-00016
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 the plaintiff had suffered a 25 percent permanent partial disability to his left foot. The defendant says the evidence preponderates against a finding the plaintiff had suffered any permanent impairment. We affirm the judgment of the trial court. On May 25, 1995, a steel beam fell upon the plaintiff's foot, causing a fracture of the foot. The medical testimony in this case is not extensive. Dr. Larry David Johnson, an orthopedic surgeon, was the treating physician. Dr. Johnson diagnosed the injury as a non-displaced fracture of the first metatarsal bone of the [left] foot. Dr. Johnson saw the plaintiff on May 23, 1995 for the initial exam and on four occasions after that. He testified the plaintiff recovered from the injury in due course. Dr. Johnson released the plaintiff to work on July 5, 1995 and found he had reached maximum medical recovery at that time. Dr. Johnson examined the plaintiff on August 16, 1995 and found the fracture had healed. Dr. Johnson found the plaintiff suffered no permanent impairment from the injury. Dr. Robert J. Barnett, an orthopedic surgeon, examined the plaintiff in June 1996. Dr. Barnett found that the plaintiff was continuing to have pain in his foot, that he has to walk on the outside of his foot, and that he had some swelling in his left foot. Dr. Barnett's testimony, when read in context of the injury in question, is that the plaintiff sustained a 14 percent permanent partial impairment to his left foot. The defendant asks that Dr. Barnett's testimony be depreciated because his notes showed the injury occurred May 22, 1994 rather than May 22, 1995. When the defendant asked Dr. Barnett if the injury occurred in 1995 rather than 1994 "then we'd be talking a little different situation, wouldn't we," Dr. Barnett answered "could be." The "could be" was never explored beyond this. Dr. Barnett testified subsequently that the differences in dates would not change any opinion he gave. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Franklin Murchison, |
Madison County | Workers Compensation Panel | 03/25/98 | |
| Patsy Stedman v. Hardaway Construction Co., Inc.
02S01-9703-CH-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. _ 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 25 percent permanent partial disability to the body as a whole as the result of an injury she suffered at work. The defendant has filed an appeal from the judgment. The plaintiff has moved to dismiss the appeal because the defendant failed to timely file a notice of appeal. We find that the appeal was not timely filed and therefore dismiss the appeal. The judgment in which the plaintiff was awarded 25 percent disability was entered on November 19, 1996. On December 23, 1996, the defendant filed a motion for relief from the judgment under RULE 6.2(1) and (5), TENN. R. CIV. P. The defendant's only basis for relief under this rule was that the failure to timely file a notice of appeal was inadvertent. Counsel asserted she thought the notice had been filed and was surprised to learn it had not been filed. On December 27, 1996, the defendant filed a motion to have the trial court enter a final judgment in the case. In that motion, the defendant asserted the trial court's judgment of November 19, 1996 was not final because it disposed of less than all the claims raised by the plaintiff in the original petition. The defendant's motion asserted that the trial court, in its judgment, had not disposed of the following issues: "(1) Whether plaintiff is entitled to temporary disability benefits; (2) When plaintiff's disability became permanent within the meaning of the Tennessee W orkers' Compensation Law; (3) Whether plaintiff is entitled to reimbursement of medical expenses incurred to date; and (4) Whether plaintiff is entitled to a lump sum award." On January 8, 1997, the trial judge entered an Amended Final Judgment. It is the defendant's contention that under RULE 54.2, TENN. R. CIV. P., the original judgment entered on November 19, 1996 was not final, and until the trial court had entered a final judgment the defendant could not appeal the case under the directive of RULE 3, TENN. R. APP. P. The defendant argues that the time for 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Joe C. Morris, |
Madison County | Workers Compensation Panel | 03/25/98 | |
| Brandon Brantley v. Personnel Placements
02S01-9703-CH-00013
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 contends that he got a piece of metal in his eye on Friday, August 25, 1995 at approximately 11: P.M., while working for the defendant, and that he has suffered a compensable injury to his eye. The trial court found the plaintiff had failed to prove the injury was work related. We affirm the judgment of the trial court. The plaintiff testified a piece of metal got in his eye while he was working. He testified he received the injury at 11: P.M., and he searched for his supervisor to report the injury but was unable to find him. He testified he left work as a result of the pain. The plaintiff testified he drove from work to a friend's house and took Tylenol for the pain. The friend did not testify in the case. The plaintiff's time card showed he had checked out at 8:5 P.M. He claimed he was present at work after 8:5 P.M., but he had no explanation for why his card did not show he had checked back into work. The significant medical evidence in this case was given by Dr. James A. Price, an ophthalmologist. Dr. Price saw the plaintiff on August 29, 1995 and found him to have a pseudomonas corneal ulcer -- the pseudomonas being the bacteria which causes the damage. When asked if a piece of metal that had gotten into the eye would have caused the ulcer, Dr. Price was of the opinion that this would be consistent with the condition he found. The plaintiff had not told Dr. Price he had gotten a piece of metal in his eye. Dr. Price testified the plaintiff had lost 9 percent of the vision in his left eye. The trial judge dismissed the case because he found "the plaintiff had failed to carry his burden of proof of causation." From a reading of the record it seems clear the trial judge found the plaintiff failed to show he sustained an injury by accident as he alleged, because he did not credit the plaintiff's testimony. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Joe C. Morris, |
Henderson County | Workers Compensation Panel | 03/25/98 | |
| Robert E. Edwards v. Anderson Hickey Co.
02S01-9703-CH-00022
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, Robert E. Edwards, fell 14 to 18 feet to the ground at work, injuring his right ankle. The trial court awarded 95 percent permanent partial disability to the right lower extremity. We affirm the judgment of the trial court. The employee is 65 years old with a high school education and work experience in general labor and welding. He has a non-work-related below the knee amputation of his left leg. On July 7, 1994, the employee fell from a forklift a distance of about 18 feet and landed on his left foot, crushing his right ankle. He was treated by Dr. Carl W. Huff, a board-certified orthopedic surgeon who is also certified by the American Board of Preventive Medicine, Certified Occupational Medicine. Dr. Huff first saw the employee on July 8, 1994. An x- ray at that time revealed a fracture of the calcaneus. He placed Mr. Edwards in a cast and on modified weight bearing. In September 1994, he placed the patient in a brace. During this time, Mr. Edwards required significant analgesics for pain and used a cane to help with relieving weight on the ankle and for balance. He developed post- traumatic arthritis in the talocalcaneal joint of the right foot as a result of the injury and now has limited mobility and pain with walking and weight bearing. Dr. Huff opined that plaintiff reached maximum medical improvement as of February 8, 1995. He assessed ten percent anatomic impairment to the lower extremity, with functional impairment greater due to the below the knee prosthesis on the other leg. He is limited to standing and walking about four hours a day, carrying objects lighter than ten to 15 pounds, and he cannot climb. He can go up and down steps but would have a decreased ability and more risk in doing so. He is capable of doing full-time light work, including machine operation, light lifting, or working with his upper extremities only. A job that would allow intermittent standing, sitting, and walking would be feasible. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. John Hill Chisolm, |
Lauderdale County | Workers Compensation Panel | 03/25/98 | |
| Debbie J. Goodlow v. Hospital Corp. of America, Etc.
02S01-9704-CH-00029
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 filed suit against the defendant and alleged she sustained a back injury on March 6, 1993. The trial judge found the plaintiff did not give notice of the injury until September 27, 1993, and the petition was dismissed for failure to give timely notice. We affirm the judgment of the trial court. We need not go into great detail concerning the facts in this case. The plaintiff asked her supervisor for authority to move the desk in the office in which she worked to better accommodate her work. The supervisor instructed the plaintiff to have the maintenance department to move the furniture. The maintenance department moved the furniture on Friday. The plaintiff went to the office on Saturday and she and another employee rearranged the desk and some cabinets. On Monday and Tuesday, the plaintiff worked regular shifts with no problems. On Wednesday, the plaintiff called the emergency room to tell them she would be late to work because her back was hurting. The plaintiff saw an emergency room doctor and told her supervisor she did not know what was wrong with her back. Ultimately, the plaintiff was referred to Dr. Frank Berklacich, an orthopedic surgeon, who testified that on May 7, 1993, the plaintiff told him she had hurt her back on March 7, 1993 while moving furniture at work. On June 1, 1993, the plaintiff underwent surgery on her back. The plaintiff did not give notice to the defendant of a work related injury to her back until September 27, 1993. She says she did not do so earlier because she did not know her back problem was related to the moving of furniture on March 7, 1993. We review this case de novo upon the record with a presumption of the correctness of the finding of fact of the trial judge. Tenn. Code Ann. _ 5-6- 225(e)(2). 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. William Michael Maloan, |
Weakley County | Workers Compensation Panel | 03/25/98 | |
| Richard Kevin Mccullers v. Colonial Wood Products, Inc.
03S01-9703-CV-00027
Authoring Judge: Irvin H. Kilcrease, Jr., Special Judge
Originating Judge:Hon. Earl H. Henley, Chancellor |
Knox County | Workers Compensation Panel | 03/23/98 | |
| Special Judge Hamilton v. Gayden, Jr.
03S01-9702-CV-00024
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. 5-6-225 (e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Lear Seating Corporation, contends that the trial court erred in awarding the employee, Janet L. Brooks, workers' compensation benefits based upon the court's finding that she suffered from "reflex sympathetic dystrophy or some psychiatric symptoms." The employer contends further that the trial court erred in determining the period of time in which the employee was eligible to for temporary total disability benefits. Finally, the employer challenges as excessive the trial court's award of permanent partial disability benefits based on a vocational disability rating of 85% to the body as a whole. We affirm the judgment of the trial court in all respects. At the time of the trial, the employee was forty-one (41) years old. She completed high school and attended one year of business college. Her work history includes jobs as a retail cashier and assembly line worker. The employee performed various functions for the employer from the time she began her employment there in November of 1985. When the employee was injured, she was operating a hand press which had overhead control buttons. On February 18, 1994, a 3-pound piece of steel fell off of the press bench and struck her left foot causing a crushing injury. She immediately saw the company nurse who referred her to the emergency room. At the emergency room, the employee was placed in a walking shoe and referred to an orthopedist. The employee was first treated by Dr. William Hovis, an orthopedic surgeon, on February 21, 1994. Dr. Hovis examined her and took x-rays of her left foot. He diagnosed her to have contusion of the left foot. On a return visit on March 14, 1994, in addition to the bruising and swelling, the employee also complained of knee pain which intensified when she sat for a long time. On examination, Dr. Hovis determined that the employee's knee was normal and that the contusion in her foot was resolving. Dr. Hovis opined that the employee would not have any permanent impairment or work restrictions as a result of her injury. Dr. Hovis saw the employee again on April 25, 1996 at the request of the employer for the 2
Authoring Judge: Special Judge Irvin H. Kilcrease, Jr.
Originating Judge:Hon. Ben K. Wexler, Circuit Judge |
Knox County | Workers Compensation Panel | 03/23/98 | |
| Belinda Dunlap v. Nagle Industries
01S01-9707-CV-00153
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 appellant contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on twenty-five percent to the body as a whole. As discussed below, the panel has concluded the judgment should be modified and affirmed. At the time of the trial, the employee or claimant, Belinda Dunlap, was forty-one years old and a high school graduate. She worked for the employer, Nagle Industries, on its production line from approximately July, 1991 until September 11, 1992, when she reported to the employer that she was experiencing pain in her right hand after operating a drill press. She was sent to see Dr. Dave Alexander on September 14, 1992. Dr. Alexander initially excused her from work for approximately two and one-half weeks. Three days later, the doctor released her to return to light duty, but she did not return until September 22. Upon her return, she continued to complain of wrist pain and asked to be referred to another doctor. She was allowed to leave work and referred to Dr. Cooper Beazley, who released her to return to left hand work only. There is a factual dispute as to her reason for not performing the work offered. She has since begun working for, apparently, another employer. At the trial, Dr. Beazley testified that he found no abnormality and no permanent impairment. Dr. Larry Laughlin, who examined her at the employer's request, found a normal range of motion and function in the claimant's right elbow, wrist, hand and fingers. Additionally, the claimant was treated by Dr. Winston Griner and evaluated by Dr. Lloyd Walwyn. Dr. Griner diagnosed right carpal tunnel syndrome from repetitive use of the right hand and assessed a permanent impairment rating of fifteen to twenty percent to the right upper extremity. Dr. Walwyn made a similar diagnosis and assessed twenty percent to the right upper extremity, from loss of grip strength in her dominant hand. Both assessments were based on appropriate guidelines. The trial court awarded, inter alia, permanent partial disability benefits based on twenty-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment which cause either disablement or death of the employee are compensable. Reeser v. Yellow Freight Systems, Inc., 938 S.W.2d 69 (Tenn. 1997). Compensation benefits are payable for the number of weeks established by a statutory schedule of the 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Robert E. Burch, |
Houston County | Workers Compensation Panel | 03/18/98 | |
| David Richards v. Saturn Corporation
01S01-9706-CV-00131
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 appellant states the issues as follows: 1. "Whether the trial court improperly granted Plaintiff's Motion to Permit Additional Proof after entering a final order of judgment; 2. "Assuming arguendo that the trial court properly granted Plaintiff's Motion to Permit Additional Proof, whether the proof introduced at both trials preponderates against the trial court's finding that Plaintiff was one hundred percent occupationally disabled; and 3. "Whether the "Amended Final Order" entered by the trial court inaccurately reflected the trial proceeding." Fairly stated, the issue is whether the evidence preponderates against an award of permanent partial disability based on one hundred percent to both arms and in favor of a lesser award. As discussed below, the panel has concluded the judgment should modified. This trial began on May 8, 1996 and was taken under advisement after both sides rested on May 8, 1996. On May 28, 1996, the plaintiff applied for leave to reopen its proof. The next day, the trial judge, apparently without having seen the motion to reopen, entered an order awarding the claimant permanent partial disability benefits based on twenty-percent to the body as a whole. The motion was argued two days later, on May 31, 1996, and was granted by an order entered on June 17,1996. Thereafter, additional proof was allowed and, on December 19, 1996, the trial court entered an amended final order allowing an additional eighty percent permanent partial disability to both arms. The appellant argues the trial judge abused his discretion by reopening the proof and that the amended judgment was void for lack of subject matter jurisdiction. Since the motion to reopen was timely made, the panel concludes the trial court had jurisdiction, in the exercise of its discretion, to reopen the proof. Moreover, we find no abuse of that discretion. The first issue is resolved in favor of the appellee. The employee or claimant, Richards, is thirty-eight years old, who has worked for General Motors since 1977. He began working for Saturn in 1993 and was, at that time, in excellent physical condition. From repetitive use of his hands on the production line, he gradually developed chronic overuse syndrome of both arms. As a result, he is unable to perform any job requiring the use of power tools or be placed in any of the present job openings at Saturn. He has thus been placed by Saturn on long term disability leave of absence. The employer concedes the injury is work related. Dr. Paul Parsons, who treated the claimant, opined by deposition on February 27, 1996 that the claimant was not permanently impaired. Dr. David Gaw, who examined the claimant, assessed a permanent medical impairment rating of ten percent to both arms and advised him to permanently 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jim T. Hamilton, |
Maury County | Workers Compensation Panel | 03/18/98 | |
| Rosemary Liszeski v. Athens Furniture Inc.
03S01-9703-CH-00035
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 the plaintiff's husband had died as the result of a heart attack while in the course and scope of his employment and awarded her survivors benefits under the Workers' Compensation Act. We reverse the judgment of the trial court and dismiss the case. Thomas Liszeski, the husband of the plaintiff, suffered a heart attack on August 1, 1995 while working in the furniture factory of the defendant. Mr. Liszeski died as a result of this on August 13, 1995. No one was with Mr. Liszeski when he suffered the heart attack. He was found lying on the floor with a wound to his head. At the time of the event, Mr. Liszeski was 47 years of age. His work consisted of operating a machine known as a router. The employee would lift a piece of wood that weighed less than eight ounces and place it on the machine to be cut. He would then stack the cut pieces into a pile. There is, as is usual in cases of this nature, conflicting evidence amongst witnesses as to facts surrounding the event. These touch not only the condition of the employee before the event but also the circumstances and conditions surrounding his work. The defendant offered testimony from a fellow employee of the deceased that the employee's wife said her husband was not feeling well prior to going to work and that he complained of pain in his chest. There was further testimony from fellow employees who testified the deceased did not look well before going to work and that the deceased said he did not feel well. The plaintiff denied that she had said the deceased was not feeling well prior to going to work. Beyond this, the plaintiff called witnesses who testified they were present when the plaintiff talked to a fellow employee of the deceased and that they did not hear the plaintiff say the deceased was not feeling well. The evidence in this record shows the work being done by the deceased was not strenuous work. The environmental evidence shows the ambient or outside 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Earl H. Henley, |
Knox County | Workers Compensation Panel | 03/16/98 | |
| Special Judge Hamilton v. Gayden, Jr.
01S01-9707-CH-00160
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This declaratory judgment action likely created an interest that otherwise might not have existed or, perhaps, might not have manifested itself. The employer filed the action alleging that its employee reported that she experienced pain in her neck on August 17, 1995, that she was successfully treated and returned to work on September 12, 1995, that her medical expenses had been paid, and that the plaintiff [employer] should be "discharged from responsibility to defendant [employee]." A counter-claim followed in course, with the employee alleging that her neck injury resulted in temporary total disability, temporary partial disability, permanent impairment and disability, together with the incurrence of medical expenses. The trial court found the issues in favor of the employee and awarded her benefits based upon a twelve and one-half percent disability to her whole body, thus entitling her to a recovery of $2,793.5 to be paid in a lump sum. By separate order the employee was awarded $6. discretionary costs. The propriety of these awards is questioned on appeal. 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. T.C.A. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The claimant is 37 years old, with limited marketable skills. She was initially employed in 1991 or 1992, according to her testimony. In 1992 "something happened to my neck" while loading a spool of wire. Two or three
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. J. Richard Mcgregor |
Warren County | Workers Compensation Panel | 03/09/98 | |
| Patricia Diane Hayes v. Wal-Mart Stores, Inc.
02S01-9705-CH-00048
Authoring Judge: Cornelia A.Clark, Specials Judge
Originating Judge:HON. GEORGE R. ELLIS |
Gibson County | Workers Compensation Panel | 03/05/98 | |
| Shannon Forrest v. Henry I. Siegel Co., Inc.
02S01-9705-CV-00050
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 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 that the plaintiff has a 7 percent permanent partial disability to her whole body as a result of a compensable injury she sustained in September 1993, and awarded benefits accordingly, together with medical payments and mileage. The employer appeals, insisting that these findings are not supported by a 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. T.C.A. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The plaintiff is 3 years of age with limited marketable skills. She commenced work for the defendant in 1988 and quit in September 1996. In September 1993 she operated a "top press," and pressed upwards of 2, pairs of trousers each day. She testified that pain and a tingling sensation developed in her right leg and hip for which she sought medical attention, and advised her supervisor of her problems. Her physician was Dr. Lawrence, whom she heard call Jeff Harris, plant manager, to inform him of her condition and request lighter duty. She did not work for "six to eight weeks." Dr. Lawrence referred her to the Jackson Orthopedic Clinic for examination and treatment, and she was later examined and treated at the Semmes Murphey Clinic in Jackson. Various tests were performed, including a CAT scan and MRI. She was eventually referred 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Creed Mcginley |
Carroll County | Workers Compensation Panel | 03/02/98 | |
| Toby Hedgecoth v. Harold Moore & Assocs.
01S01-9702-CV-00033
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Maury County | Workers Compensation Panel | 03/02/98 | |
| Stephanie Clinard v. Lumbermens Mutual Casualty Co.
01S01-9703-CV-00051
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 appellant here contends the evidence preponderates against the trial court's finding that the employee's injury was causally connected to her employment. The panel has concluded the judgment should be affirmed. The employee or claimant, Clinard, is approximately 4 years old and has a GED. She has worked as a cashier at a convenience market in Springfield since 1992, having previously worked as a cashier, as a baby sitter, as a production worker in a garment factory and as a homemaker. On March 24, she noticed a pop in her neck and a shooting pain in her left arm, while manually operating a credit card machine at work. She reported the event to her supervisor, who did not refer her to a physician or provide a list from which she could choose one. The claimant went to her own physician, Dr. Robert Ferland, who took her off work and prescribed physical therapy. She also saw two neurosurgeons, both of whom ordered diagnostic testing. One of them expressed doubt as to whether the injury was work-related, but was unable to point to any other possible cause. The other had no opinion as to the cause of injury. The claimant was unable to work from May 2, 1994 until she returned during the last week in July of the same year. She terminated her employment in November of that year after the pain worsened. The employer did not provide any medical benefits. Ultimately, the claimant sought outa Dr. Cantrell, who referred her to Dr. Arthur Cushman, another neurosurgeon. Dr. Cushman diagnosed a herniated disc in her neck and performed corrective surgery. The pain diminished following the surgery. Dr. David Gaw saw her after surgery and prescribed permanent limitations. The claimant took karate after the injury, but we find in the record no evidence that her injury was caused by karate lessons, as the employer's insurer contends. The lay proof supports the claimant's contention that her injury was work related. Dr. Cushman conceded the credit card machine incident and continued use of the arm at work was a possible cause of the injury. He estimated her permanent impairment at seven percent.. Dr. Gaw testified the credit card incident was the most likely cause, in the absence of any other explanation, and assigned a fifteen percent permanent impairment to the whole body. Both of these doctors based their opinions of permanent impairment on approved guidelines. The trial court found the injury to be work related and awarded benefits under the Tennessee Workers' Compensation Law (the Act). Appellate 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. James E. Walton, |
Robertson County | Workers Compensation Panel | 03/02/98 | |
| Martha Shupe v. Ins. Co. of Pennsylvania
03S01-9706-CV-00065
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appeal was perfected by the employer, Insurance Company of Pennsylvania, from a decision of the trial court awarding the employee, Martha Jane Shupe, 9% permanent partial disability to the body as a whole. On appeal defendant insurance company insists (1) the trial court was in error in finding the cervical disc injury was work-related and (2) if the injury was work- related, the award of 9% was excessive under the proof. The employee contends (1) she is totally disabled and the award should be fixed at 1% and (2) the trial court was in error in finding the aneurysm rupture was not work-related. Plaintiff was 45 years of age at the time of the trial and had completed the 8th grade. She was employed at a Burger King restaurant on April 27, 1992, when she climbed upon a shelf to return a box to a higher shelf; in attempting to come down, her foot slipped and she fell some distance landing on her feet; she stated the fall caused her body to twist and she experienced immediate intense pain in her neck. Plaintiff was taken immediately to a hospital emergency room where she was examined and referred to another doctor. She remained off work for about two weeks and then returned to work on a reduced time schedule. She testified after some period of part time work, her employer decided she should not work further. On about May 27, 1992, she was present with her husband at a court hearing (unrelated to present case) when she turned her head to look out the window and felt a sting of pain in the back of her neck. Shortly later she experienced double vision problems and could not move her legs for awhile. She also became nauseated. Further investigation into her complaints indicated there had been a rupture of an aneurysm in her head and that she also had a herniated cervical disc. Surgery was performed to correct the aneurysm problem and about a year later, she had a fusion to repair the disc problem. The trial was conducted on October 28 and 29, 1996, which was about 4 _ years after sustaining the injury. She testified she had attempted to find some light 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Ben K. Wexler, |
Knox County | Workers Compensation Panel | 03/02/98 | |
| Teresa Woody v. Goodyear Tire & Rubber Co.
02S01-9976-CH-00052
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 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 the plaintiff benefits based on a finding of 25 percent permanent partial disability to her whole body. The defendant appeals, asserting the excessiveness of this award and the bar of the statute of limitations. An in-depth discussion of her employment history with the defendant is necessary for an adequate assessment of her claim. She was 34 years old at the time of trial and lives in Obion County, Tennessee. She completed high school and attended Vanderbilt University for a short period of time. At the time of trial, she was a senior at the University of Tennessee at Martin majoring in English, lacking approximately three hours before graduation. Following graduation, she plans to attend graduate school, seek a Masters Degree in English, and ultimately teach. Her work history includes a work study program at Vanderbilt University, primarily clerical in nature. She has worked for Baptist Hospital in Union City as an admission clerk, a clerical position, and in 1988, she began working for Goodyear Tire & Rubber Company, in the gift shop. Shortly thereafter, she moved into the factory, working on a bias unit, which involved repetitive overhead lifting, twisting and turning. In June of 1989, she began having pain and problems with her shoulders, and informed her supervisor, David Stephenson, of these problems and filled out an incident report in July, 1989. She was initially seen by Dr. David St. Clair who diagnosed impingement syndrome. Her claim for workers' compensation benefits was eventually denied. She continued to work on the bias machine and her shoulder problems progressively worsened. In 199, she resigned her position with the defendant to attend school, and worked part-time for Baptist Hospital in Union City, again 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Chancellor |
Obion County | Workers Compensation Panel | 03/02/98 |