WORKERS COMPENSATION PANEL OPINIONS
| Cecelia Teague v. Tecumseh Products Company 02S01-9509-CV-00081 Authoring Judge: Joe H. Walker, III, Judge Trial Court Judge: Hon. Julian P. Guinn, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Henry County | Workers Compensation Panel | ||
| Lamonte Pearson v. Day International, Inc, d/b/a Colonial Rubber Works, Inc. and Reliance Insurance Company 02S01-9503-CV-00023 Authoring Judge: Janice M. Holder, Special Judge Trial Court Judge: Hon. J. Steven Stafford, Judge This workers' compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The sole issue for review is the trial court's determination that an amended complaint filed against the Second Injury Fund was barred by the statute of limitations. For the following reasons, we affirm the decision of the trial court. On January 26, 1989, Lamonte Pearson ("Mr. Pearson") injured his back in an automobile accident that was not work related. Mr. Pearson's lawsuit was apparently unsuccessful at trial and no damages were awarded. On March 4, 1991, he again injured his back in the course of his employment with Day International, d/b/a Colonial Rubber Works, Inc. and was treated by the same physician. A complaint for worker's compensation benefits was timely filed on April 15, 1991. The complaint alleged that Mr. Pearson "suffered, and will continue to suffer, temporary total, temporary partial and possibly permanent total disability as a result of this work related injury." His prayer for relief requested an award of "such further temporary total, temporary partial, permanent partial, or permanent total disability and medical expenses to which this Court finds him entitled . . ." A motion to amend the complaint was filed on April 24, 1992, and leave to amend was granted on the same date. An amended complaint adding the Second Injury Fund was filed on May 29, 1992, more than one (1) year after the work related injury. The amended complaint further alleges that Mr. Pearson had previously sustained a permanent physical disability capable of supporting a workers' compensation award if it had arisen out of and in the course of employment and that he had become permanently and totally disabled through the subsequent work related injury. The Second Injury Fund asserted the bar of the statute of limitations. During his deposition in this case, Mr. Pearson's treating physician found him to have a permanent partial disability of 9% to the body as a whole as a result of the non-work related incident and 6% to the body as a whole as a result of the work related incident, or a 12% combined impairment rating under the AMA Guidelines. The trial court found Mr. Pearson to be 1% disabled and apportioned 45% of the award to Colonial and 55% to the Second Injury Fund; the court ruled that recovery against the Second 2 |
Dyer County | Workers Compensation Panel | ||
| Lamonte Pearson v. Day International, Inc, d/b/a Colonial Rubber Works, Inc. and Reliance Insurance Company 02S01-9503-CV-00023 Authoring Judge: Janice M. Holder, Special Judge Trial Court Judge: Hon. J. Steven Stafford, Judge This workers' compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The sole issue for review is the trial court's determination that an amended complaint filed against the Second Injury Fund was barred by the statute of limitations. For the following reasons, we affirm the decision of the trial court. On January 26, 1989, Lamonte Pearson ("Mr. Pearson") injured his back in an automobile accident that was not work related. Mr. Pearson's lawsuit was apparently unsuccessful at trial and no damages were awarded. On March 4, 1991, he again injured his back in the course of his employment with Day International, d/b/a Colonial Rubber Works, Inc. and was treated by the same physician. A complaint for worker's compensation benefits was timely filed on April 15, 1991. The complaint alleged that Mr. Pearson "suffered, and will continue to suffer, temporary total, temporary partial and possibly permanent total disability as a result of this work related injury." His prayer for relief requested an award of "such further temporary total, temporary partial, permanent partial, or permanent total disability and medical expenses to which this Court finds him entitled . . ." A motion to amend the complaint was filed on April 24, 1992, and leave to amend was granted on the same date. An amended complaint adding the Second Injury Fund was filed on May 29, 1992, more than one (1) year after the work related injury. The amended complaint further alleges that Mr. Pearson had previously sustained a permanent physical disability capable of supporting a workers' compensation award if it had arisen out of and in the course of employment and that he had become permanently and totally disabled through the subsequent work related injury. The Second Injury Fund asserted the bar of the statute of limitations. During his deposition in this case, Mr. Pearson's treating physician found him to have a permanent partial disability of 9% to the body as a whole as a result of the non-work related incident and 6% to the body as a whole as a result of the work related incident, or a 12% combined impairment rating under the AMA Guidelines. The trial court found Mr. Pearson to be 1% disabled and apportioned 45% of the award to Colonial and 55% to the Second Injury Fund; the court ruled that recovery against the Second 2 |
Dyer County | Workers Compensation Panel | ||
| Billy Clevinger v. Burlington Motor Carriers, Inc. 03S01-9508-CV-00092 Authoring Judge: Penny J. White, Justice Trial Court Judge: Hon. Ben K. Wexler This workers' compensation appeal from the Hawkins County Circuit Court has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e) (3) (1995 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. For the reasons set forth below, we affirm the judgment of the trial court. I. The plaintiff, Billy Clevinger ("employee"), is a resident of Hawkins County, Tennessee. The defendant, Burlington Motor Carriers, Inc., ("employer"), is a trucking company with its principal place of business in Indiana. The employee, who was hired in Tennessee, worked for the employer as truck driver. On December 1, 1993, the employee was driving one of the employer's trucks from Kentucky to Arkansas. While traveling through Tennessee on the way to Arkansas, he was involved in a single vehicle accident. The employee was hospitalized for a short time due to injuries sustained in the accident. He then returned to his home in Hawkins County. On December 28, 1993, the employee signed a document sent to him by the employer's claim adjustor entitled "Agreement to Compensation of Employee and Employer." The form contained the heading "Indiana Workers' Compensation Board, . . . Indianapolis, Indiana." The document included information concerning the date of injury, the type of injury (bruised left arm and strain of lower back), the place of injury, the employee's average weekly wage, and the amount the employee would be receiving as temporary total disability. The form also contained the declaration that " [w]e (employee and employer) have reached an agreement in regards to compensation for the injury sustained by said employee . . . ." The form further indicated that the "terms of the agreement . . . shall be payable . . . until terminated in accordance with the provisions of the Indiana Workers' Compensation/Occupational Diseases Acts." The employee 2 |
Hawkins County | Workers Compensation Panel | ||
| Billy Clevinger v. Burlington Motor Carriers, Inc. 03S01-9508-CV-00092 Authoring Judge: Penny J. White, Justice Trial Court Judge: Hon. Ben K. This workers' compensation appeal from the Hawkins County Circuit Court has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e) (3) (1995 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. For the reasons set forth below, we affirm the judgment of the trial court. I. The plaintiff, Billy Clevinger ("employee"), is a resident of Hawkins County, Tennessee. The defendant, Burlington Motor Carriers, Inc., ("employer"), is a trucking company with its principal place of business in Indiana. The employee, who was hired in Tennessee, worked for the employer as truck driver. On December 1, 1993, the employee was driving one of the employer's trucks from Kentucky to Arkansas. While traveling through Tennessee on the way to Arkansas, he was involved in a single vehicle accident. The employee was hospitalized for a short time due to injuries sustained in the accident. He then returned to his home in Hawkins County. On December 28, 1993, the employee signed a document sent to him by the employer's claim adjustor entitled "Agreement to Compensation of Employee and Employer." The form contained the heading "Indiana Workers' Compensation Board, . . . Indianapolis, Indiana." The document included information concerning the date of injury, the type of injury (bruised left arm and strain of lower back), the place of injury, the employee's average weekly wage, and the amount the employee would be receiving as temporary total disability. The form also contained the declaration that " [w]e (employee and employer) have reached an agreement in regards to compensation for the injury sustained by said employee . . . ." The form further indicated that the "terms of the agreement . . . shall be payable . . . until terminated in accordance with the provisions of the Indiana Workers' Compensation/Occupational Diseases Acts." The employee 2 |
Hawkins County | Workers Compensation Panel | ||
| Robin Sloan v. Bridgestone/Firestone, Inc. 01S01-9509-GS-00157 Authoring Judge: Joe C. Loser, Jr., Special Judge Trial Court Judge: Hon. Barry Medley, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that the award of disability benefits is excessive; and the employee contends the trial court erred in finding that she did not suffer a disabling work-related neck injury. The panel has concluded that the judgment should be modified as provided herein. On July 5, 1992, the claimant, Robin Sloan, strained her back at work. She reported the injury to her employer and was referred to Dr. G. Jackson Jacobs, who referred her to Dr. David Bratton, an orthopedic surgeon, who, on July 15, 1992, diagnosed lumbar strain and released her to light duty for two weeks. She saw Dr. Daniel Phillips on October 23, 1992 and two other occasions. Dr. Phillips found no permanent disability to the claimant's back or neck caused by a work-related injury. Her attorney referred her to Dr. Richard Fishbein. Dr. Fishbein, on the strength of the history related to him by the claimant, agreed with the original diagnosis and assessed a permanent impairment of five percent to the whole body. The claimant is thirty-four years old witha high school educationand an associates degree in education from Motlow State Community College. She has experience in office work, as a restaurant manager and in business. She quit working for the employer shortly after the accident and was not working at the time of the trial. She was able to work, according to Dr. Bratton's note on and after July 15, 1992. The trial judge awarded permanent partial disability benefits on the basis of thirty-five percent to the body as a whole and temporary total disability benefits from July 5, 1992 to January 7, 1993. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Warren County | Workers Compensation Panel | ||
| Mary Charmagne Perdue v. National Healthcorp, L.P., Or National Health Corporation, Or Nhc, Inc., And/Or Columbia Health Care 01S01-9508-CH-00142 Authoring Judge: Joe C. Loser, Jr., Special Judge Trial Court Judge: Hon. Jim T. Hamilton, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Perdue, contends (1) that the evidence preponderates against the trial judge's finding that she failed to give the required notice of a claimed injury by accident occurring on January 23, 1993, (2) that the said injury was suffered within the course and scope of employment with the defendant, and (3) that she is entitled to compensation for an injury on April 3, 1994. The panel concludes that the judgment awarding benefits for an injury by accident arising out of and in the course of the claimant's employment in August of 1994 should be affirmed. The claimant is twenty-nine years old and has an associates degree in nursing. At all material times she was employed by the employer, Columbia, as a registered nurse. She claims to have strained her lower back in January of 1993 at work but continued to work. She did not give any written notice of the injury to the employer and there is conflicting evidence as to whether she verbally reported it. In April of 1993 she saw a chiropractor. On April 17, 1993, she noticed numbness in her hip and leg and began seeing Dr. Jeffrey Adams, who diagnosed a herniated lumbar disk. She did not tell the doctor that the condition was a result of an injury at work, according to the doctor, who performed corrective surgery. On August 5, 1993, the claimant was grabbed around the neck by a patient and pulled down to the patient's bed. Dr. Adams diagnosed a herniated disk at the same location as the previous one and performed a second corrective surgery. She has not returned to work.1 The trial judge found that, as to the claimed January injury, the claimant had failed to carry the burden of proof that her superiors at work had actual notice of her injury or that a work-related injury had occurred on that date.2 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. McCaleb v. Saturn Corp., 91 S.W.2d 1 The claimant had another surgery in 1994 by a different surgeon. 2 The trial judge did award medical and hospital benefits for the August injury, from which no issue has been raised in this appeal. 2 |
Maury County | Workers Compensation Panel | ||
| Mary Charmagne Perdue v. National Healthcorp, L.P., Or National Health Corporation, Or Nhc, Inc., And/Or Columbia Health Care 01S01-9508-CH-00142 Authoring Judge: Joe C. Loser, Jr., Special Judge Trial Court Judge: Hon. Jim T. Hamilton, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Perdue, contends (1) that the evidence preponderates against the trial judge's finding that she failed to give the required notice of a claimed injury by accident occurring on January 23, 1993, (2) that the said injury was suffered within the course and scope of employment with the defendant, and (3) that she is entitled to compensation for an injury on April 3, 1994. The panel concludes that the judgment awarding benefits for an injury by accident arising out of and in the course of the claimant's employment in August of 1994 should be affirmed. The claimant is twenty-nine years old and has an associates degree in nursing. At all material times she was employed by the employer, Columbia, as a registered nurse. She claims to have strained her lower back in January of 1993 at work but continued to work. She did not give any written notice of the injury to the employer and there is conflicting evidence as to whether she verbally reported it. In April of 1993 she saw a chiropractor. On April 17, 1993, she noticed numbness in her hip and leg and began seeing Dr. Jeffrey Adams, who diagnosed a herniated lumbar disk. She did not tell the doctor that the condition was a result of an injury at work, according to the doctor, who performed corrective surgery. On August 5, 1993, the claimant was grabbed around the neck by a patient and pulled down to the patient's bed. Dr. Adams diagnosed a herniated disk at the same location as the previous one and performed a second corrective surgery. She has not returned to work.1 The trial judge found that, as to the claimed January injury, the claimant had failed to carry the burden of proof that her superiors at work had actual notice of her injury or that a work-related injury had occurred on that date.2 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. McCaleb v. Saturn Corp., 91 S.W.2d 1 The claimant had another surgery in 1994 by a different surgeon. 2 The trial judge did award medical and hospital benefits for the August injury, from which no issue has been raised in this appeal. 2 |
Maury County | Workers Compensation Panel | ||
| Treva Milan v. Quebecor Printing (U.S.A.) Group and Lumbermens Mutual Casualty Company 01S01-9601-CV-00005 Authoring Judge: Per Curiam Trial Court Judge: Hon. James E. Walton This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff injured her arms and wrists while working for defendant in April 1994. The trial judge awarded her 35 percent permanent partial disability to each upper extremity. We affirm the judgment of the trial court. Plaintiff was working on an assembly line, feeding magazine pages into a sorter, when a wooden pallet slid onto her arms, causing pain. She was placed on light duty and wore wrist splints for at least a month, but when she returned to full duty, she had a recurrence of pain, numbness and tingling. Dr. W. Cooper Beazley, orthopedic surgeon, diagnosed plaintiff with overuse syndrome in both hands and told her to consider changing to a job where she would not have to perform rapid, repetitious work with her hands. However, he did not assess any medical impairment under AMA Guidelines because the Guides do not provide for a permanent impairment rating for overuse syndrome. Dr. Lloyd Walwyn, orthopedic surgeon, conducted an independent medical examination including objective testing. He diagnosed cumulative trauma disorder with mild bilateral carpal tunnel syndrome and assessed 28 percent permanent partial impairment to each upper extremity. The employer made efforts to put plaintif f back to work with her post-injury limitations, but there was no work available at the factory that she was able to do. Plaintiff is 26 years old with a high school education and work experience mostly in factory work. The trial judge found that the injury plaintiff sustained reduced her ability to compete in the open job market because it permanently affected her use of her hands. He also found her testimony that she has pain to be convincing. |
Montgomery County | Workers Compensation Panel | ||
| Treva Milan v. Quebecor Printing (U.S.A.) Group and Lumbermens Mutual Casualty Company 01S01-9601-CV-00005 Authoring Judge: Per Curiam Trial Court Judge: Hon. James E. Walton This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff injured her arms and wrists while working for defendant in April 1994. The trial judge awarded her 35 percent permanent partial disability to each upper extremity. We affirm the judgment of the trial court. Plaintiff was working on an assembly line, feeding magazine pages into a sorter, when a wooden pallet slid onto her arms, causing pain. She was placed on light duty and wore wrist splints for at least a month, but when she returned to full duty, she had a recurrence of pain, numbness and tingling. Dr. W. Cooper Beazley, orthopedic surgeon, diagnosed plaintiff with overuse syndrome in both hands and told her to consider changing to a job where she would not have to perform rapid, repetitious work with her hands. However, he did not assess any medical impairment under AMA Guidelines because the Guides do not provide for a permanent impairment rating for overuse syndrome. Dr. Lloyd Walwyn, orthopedic surgeon, conducted an independent medical examination including objective testing. He diagnosed cumulative trauma disorder with mild bilateral carpal tunnel syndrome and assessed 28 percent permanent partial impairment to each upper extremity. The employer made efforts to put plaintif f back to work with her post-injury limitations, but there was no work available at the factory that she was able to do. Plaintiff is 26 years old with a high school education and work experience mostly in factory work. The trial judge found that the injury plaintiff sustained reduced her ability to compete in the open job market because it permanently affected her use of her hands. He also found her testimony that she has pain to be convincing. |
Montgomery County | Workers Compensation Panel | ||
| Sherry Lawrence v. Erin Truckways, Ltd. d/b/a Digby Truck Line, Inc., and The Travelers Insurance Company 01S01-9512-CV-00216 Authoring Judge: Per Curiam Trial Court Judge: Hon. Walter C. Kurtz, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff 1% permanent vocational disability. Defendants challenge the trial court's finding of permanent impairment and the trial court's finding of 1% permanent vocational disability. We find that the evidence preponderates in favor of a finding of a compensable permanent injury. We find, however, that the evidence preponderates against an award of 1% permanent vocational disability. W e find the evidence preponderates in favor of a finding of 75% permanent partial vocational disability. We so modify the judgment of the trial court and, as modified, affirm it. Plaintiff, 41, has a tenth-grade education. Her past work history includes work as a waitress, bartender, factory worker and a truck driver. On October 3, 199, plaintiff and her husband were driving for defendant when plaintiff fell from the truck cab as she was trying to open a partially stuck passenger door. She was diagnosed with a sprain to the right upper back and right neck and admitted to the hospital for an unstable diabetic condition. She was also visited by a psychiatrist while at the hospital for depression and sleeplessness. Since her injury, plaintiff has developed chronic pain in her neck and back and eventually in her lower back. She never returned to work for the defendant but, in 1992, she began working as a bartender. She quit after ten months due to pain. Plaintiff was first treated by Dr. Gurumurthy Reddy, an orthopedic surgeon, who diagnosed a neck and upper back strain and noted muscle spasm and limitation of range of motion of the neck. He last saw her on January 31, 1991, when he diagnosed myofascial neck and upper back pain and released her to return to work on a trial basis. Plaintiff was eventually treated by Dr. Dennis Aguirre, an anesthesiologist. He diagnosed fibromyalgia in August 1993. He testified that fibromyalgia is a 2 |
Lawrence County | Workers Compensation Panel | ||
| Sherry Lawrence v. Erin Truckways, Ltd. d/b/a Digby Truck Line, Inc., and The Travelers Insurance Company 01S01-9512-CV-00216 Authoring Judge: Per Curiam Trial Court Judge: Hon. Walter C. Kurtz, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff 1% permanent vocational disability. Defendants challenge the trial court's finding of permanent impairment and the trial court's finding of 1% permanent vocational disability. We find that the evidence preponderates in favor of a finding of a compensable permanent injury. We find, however, that the evidence preponderates against an award of 1% permanent vocational disability. W e find the evidence preponderates in favor of a finding of 75% permanent partial vocational disability. We so modify the judgment of the trial court and, as modified, affirm it. Plaintiff, 41, has a tenth-grade education. Her past work history includes work as a waitress, bartender, factory worker and a truck driver. On October 3, 199, plaintiff and her husband were driving for defendant when plaintiff fell from the truck cab as she was trying to open a partially stuck passenger door. She was diagnosed with a sprain to the right upper back and right neck and admitted to the hospital for an unstable diabetic condition. She was also visited by a psychiatrist while at the hospital for depression and sleeplessness. Since her injury, plaintiff has developed chronic pain in her neck and back and eventually in her lower back. She never returned to work for the defendant but, in 1992, she began working as a bartender. She quit after ten months due to pain. Plaintiff was first treated by Dr. Gurumurthy Reddy, an orthopedic surgeon, who diagnosed a neck and upper back strain and noted muscle spasm and limitation of range of motion of the neck. He last saw her on January 31, 1991, when he diagnosed myofascial neck and upper back pain and released her to return to work on a trial basis. Plaintiff was eventually treated by Dr. Dennis Aguirre, an anesthesiologist. He diagnosed fibromyalgia in August 1993. He testified that fibromyalgia is a 2 |
Lawrence County | Workers Compensation Panel | ||
| Robin Sloan v. Bridgestone/Firestone, Inc. 01S01-9509-GS-00157 Authoring Judge: Joe C. Loser, Jr., Special Judge Trial Court Judge: Hon. Barry Medley, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that the award of disability benefits is excessive; and the employee contends the trial court erred in finding that she did not suffer a disabling work-related neck injury. The panel has concluded that the judgment should be modified as provided herein. On July 5, 1992, the claimant, Robin Sloan, strained her back at work. She reported the injury to her employer and was referred to Dr. G. Jackson Jacobs, who referred her to Dr. David Bratton, an orthopedic surgeon, who, on July 15, 1992, diagnosed lumbar strain and released her to light duty for two weeks. She saw Dr. Daniel Phillips on October 23, 1992 and two other occasions. Dr. Phillips found no permanent disability to the claimant's back or neck caused by a work-related injury. Her attorney referred her to Dr. Richard Fishbein. Dr. Fishbein, on the strength of the history related to him by the claimant, agreed with the original diagnosis and assessed a permanent impairment of five percent to the whole body. The claimant is thirty-four years old witha high school educationand an associates degree in education from Motlow State Community College. She has experience in office work, as a restaurant manager and in business. She quit working for the employer shortly after the accident and was not working at the time of the trial. She was able to work, according to Dr. Bratton's note on and after July 15, 1992. The trial judge awarded permanent partial disability benefits on the basis of thirty-five percent to the body as a whole and temporary total disability benefits from July 5, 1992 to January 7, 1993. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Warren County | Workers Compensation Panel | ||
| Anna Lue Mckamey v. Red Kap Industries 03S01-9505-CH-00053 Authoring Judge: William H. Inman, Senior Judge Trial Court Judge: Hon. Frank V. Williams, III 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 appellant suffered a stroke while working on an assembly line. Substantial disability resulted, which she alleges is compensable as being accident- related. The trial judge disagreed, and she appeals. Our review is de novo, with the presumption that the judgment is correct unless the evidence otherwise preponderates. TENN. CODE ANN. _ 5-6-225(e)(2). Mrs. McKamey is 49 years old, with limited skills and education. Her assembly-line job involved the sewing of shirt collar stays, which may be fairly described as repetitive and monotonous. On May 12, 1992, while working the 7: a.m. to 3:3 p.m. shift, she suffered a stroke shortly before the end of her shift which resulted in total vocational disability. She alleges that, like all other employees, she was expected to make production, with its attendant pressures and tensions, which caused or contributed to the stroke. Causation is the dispositive issue. The proof revealed that Mrs. McKamey had been suffering from hypertension for years and had been regularly taking medication for that disease since 1988. She had smoked cigarettes since age 14; at the time of her stroke, she smoked more than twenty per day. Responding to a hypothetical question, Dr. John Purvis, a neurosurgeon, testified that the sewing of hundreds of collar stays during a regular shift could be a contributory factor to the cerebral accident, depending upon a resolution of certain factors, those being arteriosclerosis and hypertension, the former being aggravated or caused by smoking which "played a part" and contributed to her pre-existing condition. The inducing causes of her stroke was the rupture of a blood vessel. After reviewing a videotape of the assembly-line workers, Dr. Purvis testified as -2- |
Knox County | Workers Compensation Panel | ||
| Debbie G. Farrow v. Phillips Consumer Electronics Company 03S01-9508-CV-00089 Authoring Judge: Joe C. Loser, Jr., Special Judge Trial Court Judge: Hon. Wheeler Rosenbalm, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Farrow, contends the evidence preponderates against the trial court's finding that her injury did not arise out of her employment. The panel concludes that the judgment should be reversed and the case remanded for an award of benefits. On October 6, 1993, the claimant was injured while she was hurriedly walking from her work station to the cafeteria at the start of a ten minute break period. She had almost reached the stop of a stairway when she came down hard on her foot, injuring her knee. She suffered internal knee derangement, according to the operating surgeon. The trial judge found that the injury occurred in the course of employment, but did not arise out of the employment, as required. 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). Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Generally, an injury arises out of employment if it has a rational causal connection to the work; and any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614 (Tenn. 1985); White v. Werthan Industries, 824 S.W.2d 158 (Tenn. 1992). Where an employee is injured on the employer's premises during a break period provided by the employer, such an injury is generally compensable. Wellington v. John Morrell and Co., 619 S.W.2d 116 (Tenn. 1981); Drew v. Tappan Co., 63 S.W.2d 624 (Tenn. 1982); Holder v. Wilson Sporting Goods Co., 723 S.W.2d 14 (Tenn. 1987). The rule is derived from the notion that an employer who directs or permits his employees to eat at a place provided for that purpose or otherwise within the premises, owes such employees the same duty of protection from danger there that it does at the place where the employees work. Johnson Coffee Co. v. McDonald, 143 Tenn. 55, 226 S.W. 215 (192). On the strength of those authorities, the panel finds that the evidence preponderates against the trial court's finding and in favor of a finding that the claimant's injury is compensable. The judgment of the trial court is accordingly reversed and the case remanded to the trial court for an award of benefits. Costs on appeal are taxed to the defendant-appellee. 2 |
Knox County | Workers Compensation Panel | ||
| Joseph Jarreau v. Vanliner Insurance Company 01S01-9512-CH-00228 Authoring Judge: Per Curiam Trial Court Judge: Hon. Bobby Capers, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. This appeal presents the questions whether and under what circumstances, if any, an injured worker may give up his right to future medical expenses. The panel concludes the trial court's judgment, approving a settlement in which the right to future medical expenses was voluntarily surrendered for consideration, should be affirmed. The employee or claimant, Jarreau, commenced this civil action by filing a complaint for workers' compensation benefits, averring that he had suffered an injury by accident arising out of and in the course of his employment by Ozark Motor Lines, Inc. The complaint further averred, in relevant part, that his injury had been diagnosed as a tear of the left medial meniscus, that he had reached maximum medical recovery and would retain a permanent impairment but that there was a genuine dispute as to the extent of his permanent disability. He sought to recover medical and permanent partial disability benefits. Vanliner Insurance Company served its answer admitting it was the insurer for Ozark, but denying that the claimant had suffered a compensable injury or that he was permanently disabled. On September 8, 1994, before the case could be tried, the claimant and his attorney and the attorney for Vanliner appeared before Judge Capers seeking approval of a negotiated settlement. By the settlement terms, the claimant was to receive $25,459.2, representing a permanent partial disability of forty percent to the left leg, and an additional $9,54.8 in consideration of the claimant's relinquishment of any claim for future medical benefits, for a total of $35,.. Additionally, the claimant had already received $15,481.3 in medical benefits and $12,481.3 in temporary total disability benefits. We find in the record no transcript of the settlement hearing, but Judge Capers found that Dr. Robert V. Russell had opined the claimant had reached maximum medical improvement and would retain a permanent anatomical impairment of ten percent to the leg. The judge further found the settlement to be in the best interest of the claimant, "in light of the controversy and dispute between the parties." The agreement was approved as a full, final and complete settlement of Mr. Jarreau's claim against the employer and its insurer. Almost eight months later, on April 28, 1995, the claimant applied to the court, per Tenn. R. Civ. P. 6.2, for an order setting aside the settlement 2 |
Wilson County | Workers Compensation Panel | ||
| Brenda Gail Ward v. United States Fidelity and Guaranty Company 03S01-9509-CH-00109 Authoring Judge: Joe C. Loser, Jr., Special Judge Trial Court Judge: Hon. Billy Joe White, This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the evidence preponderates against the award of permanent disability benefits. The panel concludes the judgment should be reversed and the cased dismissed. The only issue litigated at trial was the extent of the claimant's permanent disability, if any. On February 19, 1993, the employee or claimant, Brenda Gail Ward, was sweeping a floor for her employer, United Parcel Service, when she suddenly slipped and fell, injuring her back, neck and shoulder. On April 7, 1993, she visited Dr. David Hauge, who treated her until January 26, 1994. Dr. Hauge diagnosed chronic degenerative changes unrelated to the above accident. His diagnosis was confirmed by an MRI of the spine. He found no evidence of an acute injury, except some muscle spasm which was resolved with physical therapy. He estimated her permanent impairment from her degenerative changes at nine percent to the whole body, but provided no proof of medical causal connection to the work-related accident. Approximately two years after the accident, the claimant was evaluated by Dr. William E. Kennedy, who found no permanent anatomical injury or change as a result of the work-related accident, but assessed her permanent impairment from her subjective complaints of pain at eight percent to the whole person. A vocational expert, Norman Hankins, estimated her industrial disability at between thirty-four and sixty-one percent, depending on her physical restrictions. The chancellor awarded permanent partial disability benefits based on forty-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 the trial court, 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. |
Campbell County | Workers Compensation Panel | ||
| Donna F. Peace v. Southern Home Carpet, Inc. 03S01-9512-CH-00134 Authoring Judge: William H. Inman, Senior Judge Trial Court Judge: Hon. H. David Cate 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 on appeal is whether the Chancellor correctly denied the motion of the appellant that her award of benefits should be paid in lump sum. The husband of appellant suffered a fatal heart attack on February 1, 1995. For his death, she sought workers' compensation benefits as the sole surviving beneficiary, and the settlement of her claim, $382.79 weekly for 4 weeks, was approved by the Chancellor who declined to approve a lump sum payment. Accrued benefits were $8,2., timely paid. The plaintiff is 45 years old, a high school graduate, and is currently employed as a dental assistant, earning net pay of $1,3. monthly. She has no children and is the sole support of her disabled mother for whose care she pays $866.67 monthly. Her disposable income from all sources (inclusive of her mothers' SSI of $4.) is $3,358.76. The balance owing on her home mortgage is $45,., which she proposed to discharge; her monthly living expenses, including a mortgage payment and the expenses of her mother's care, are about $2,9.. The Chancellor observed that this is not a case where periodic payments are not needed as a substitute for wages. See Ponder v. Manchester Housing Auth., 87 S.W.2d 282 (Tenn. 1994). TENN. CODE ANN. _ 5-6-279 authorizes lump sum payments of awards, with instructions to the trial court to consider the best interest of the employee together with his ability to wisely manage and control the award. The Chancellor expressly found that a lump sum would not be in the best interest of the plaintiff, whose ability to manage a large sum was questionable since she could not account for 25% of the accrued payments and has failed to file income tax returns for the last five (5) years. We fully concur in the Chancellor's judgment and find no abuse of discretion. Henson v. City of Lawrenceburg, 851 S.W.2d 89, 813-14 (Tenn. 1993). The judgment is affirmed at the costs of the appellant. |
Knox County | Workers Compensation Panel | ||
| Clarence W. Lee v. K-Mart Corporation 03S01-9512-CH-00130 Authoring Judge: William H. Inman, Senior Judge Trial Court Judge: Hon. Howell N. Peoples 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 claims to have suffered an injury by accident cognizable under the workers' compensation law when, on August 7, 1992, after 3 years of continuous employment, he was summarily relieved of his duties as manager of the K-Mart store in Hixson, Tennessee, demoted, and transferred to another store in Paris, Illinois. He alleged that he thereby sustained a sudden emotional injury resulting in total disability and unsoundness of mind. The defendant admitted that it removed the plaintiff from its Hixson store and transferred him to a smaller store at a reduced salary. It denied that the plaintiff gave notice of a work-related injury, and averred that he filed an age- discrimination claim against it without alerting the court or the defendant that he was of unsound mind. In course, the case was heard on the motion of the defendant for summary judgment, alleging the bar of the Statute of Limitations, TENN. CODE ANN. _ 5- 6-21, and the further allegation that the claim of emotional stress was not a compensable injury. The underlying facts are not disputed. Mr. Lee's difficulties began with his departure from company policy in disposing of defective or damaged merchandise which was to be destroyed in accordance with the manufacturer's instructions. Instead, he secreted these goods in a locked trailer, later donating them to charitable, fund raising causes. A portion of the funds realized from the sale of the damaged or defective merchandise went into a "flower fund" controlled by Mr. Lee which he used to provide gifts and trips to certain employees. Upon the belated discovery of this scheme, Mr. Lee was interviewed extensively and warned that he should expect stringent disciplinary action. He was then 5 years of age, had been manager of the Hixson store for 12 years, and had relocated 17 times. Mr. Lee was on vacation when the investigation began of his disposal of 2 |
Hamilton County | Workers Compensation Panel | ||
| Farhad Yasin Sorani v. Royal Insurance Company of America and Kenco Plastics, Inc. 01S01-9510-CH-00179 Authoring Judge: Ben H. Cantrell, Special Judge Trial Court Judge: Hon. Jane W Heatcraft, Judge 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 awarded compensation to the worker based on 5% permanent partial disability to both arms. Because we find that the evidence preponderates against the award, we modify it to 25% disability to both arms. I. Mr. Sorani, an Iraqi Kurdish refugee, went to work for Kenco Plastics, Inc. on or about February 1, 1994. His duties included gripping and cutting plastic, and involved repetitive hand movements. On May 16, 1994 he went to the Sumner County Regional Medical Center complaining of soreness in his left arm. He was diagnosed with tendonitis and put on light duty for seven days. On June 24, 1994 Mr. Sorani consulted an orthopaedic specialist for pain and numbness in both hands. An examination resulted in a diagnosis of bilateral carpal tunnel syndrome. On July 2, 1994 he was referred to another specialist, for complaints of numbness and tingling in the fingers of both hands. This specialist confirmed the carpal tunnel syndrome diagnosis and concluded that it was caused or aggravated by the work at Kenco Plastics. The doctor treated Mr. Sorani conservatively until October 28, 1994 when he performed carpal tunnel release surgery on the right hand. Following the surgery, Mr. Sorani suffered from an involuntary "triggering" movement in the ring finger on his right hand. His doctor thought that the condition would improve on its own if he was given three weeks rest. The doctor - 2 - |
Sumner County | Workers Compensation Panel | ||
| Farhad Yasin Sorani v. Royal Insurance Company of America and Kenco Plastics, Inc. 01S01-9510-CH-00179 Authoring Judge: Ben H. Cantrell, Special Judge Trial Court Judge: Hon. Jane W Heatcraft, Judge 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 awarded compensation to the worker based on 5% permanent partial disability to both arms. Because we find that the evidence preponderates against the award, we modify it to 25% disability to both arms. I. Mr. Sorani, an Iraqi Kurdish refugee, went to work for Kenco Plastics, Inc. on or about February 1, 1994. His duties included gripping and cutting plastic, and involved repetitive hand movements. On May 16, 1994 he went to the Sumner County Regional Medical Center complaining of soreness in his left arm. He was diagnosed with tendonitis and put on light duty for seven days. On June 24, 1994 Mr. Sorani consulted an orthopaedic specialist for pain and numbness in both hands. An examination resulted in a diagnosis of bilateral carpal tunnel syndrome. On July 2, 1994 he was referred to another specialist, for complaints of numbness and tingling in the fingers of both hands. This specialist confirmed the carpal tunnel syndrome diagnosis and concluded that it was caused or aggravated by the work at Kenco Plastics. The doctor treated Mr. Sorani conservatively until October 28, 1994 when he performed carpal tunnel release surgery on the right hand. Following the surgery, Mr. Sorani suffered from an involuntary "triggering" movement in the ring finger on his right hand. His doctor thought that the condition would improve on its own if he was given three weeks rest. The doctor - 2 - |
Sumner County | Workers Compensation Panel | ||
| Ronald H. Anselm v. K-Va-T Food Stores, Inc., Fireman's Fund Insurance Company and Sue Ann Head, Director, Division of Workers' Compensation, Tennessee 03S01-9508-CV-00087 Authoring Judge: William H. Inman, Senior Judge Trial Court Judge: Hon. W. Dale Young 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 alleged that he sustained an injury to his neck, arms and shoulders during the course of his employment by the K-VA-T Food Stores while performing repetitive actions involving the stocking of food shelves from April 1 to May 19, 1992. He further alleged that these repetitive actions aggravated a prior neck injury. The defendant denied the occurrence of an accidental injury. The plaintiff began working for K-VA-T as a cashier in September, 199. He was 5 years old, and had earned his livelihood driving a truck for most of his adult life. In l987 he was treated for shoulder pain for which, in December 1987, he settled a workers' compensation claim. He suf fered recurring pain in 199 while driving a truck and sought workers' compensation benefits which were awarded in December, 1992. The purported repetitive actions entailed by his most recent job occurred, as heretofore stated, during a six-weeks period in April and May, 1992. The trial judge found that the injuries complained of did not occur during the plaintiff's employment by K-VA-T, and dismissed the complaint. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial judge are correct unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Dr. Stephen Wiessfeld was the only medical expert called to testify. He said that based on the history related to him, the plaintiff sustained an aggravation to a pre- existing arthritic condition, but conceded that his opinion was dependent upon an accurate history of repetitive arm and shoulder movements. He found no anatomical changes, but relied upon the representations of his patient. Further evidence revealed that the claimed repetitive actions were not as onerous as claimed, which impelled the trial judge to find that the medical testimony was untrustworthy, and unreliable. The burden to establish each element of a workers' compensation claim is upon the employee claiming benefits. Oster v. Yates, 845 S.W.2d 815 (Tenn. 1992). One |
Knox County | Workers Compensation Panel | ||
| Martin Ellison Hughes v. Pioneer Plastics, Inc. and WaUSAu Insurance Co. 03S01-9509-CV-00110 Authoring Judge: Senior Judge John K. Byer Trial Court Judge: Hon. Ben K. Wexler This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff injured his lower back lifting a heavy machine part at work on June 21, 1994. The trial court awarded him 5 percent permanent partial disability to the body as a whole and denied plaintiff's request for payment in lump sum. We affirm the judgment of the trial court. Plaintiff's injury at work on June 21, 1994 resulted in a herniated disc at L4- L5 which was treated conservatively without improvement. He underwent surgical repair on September 6, 1994 by Dr. Steven A. Sanders. He reached maximum medical improvement on February 5, 1995 and Dr. Sanders assessed 1 percent permanent partial impairment. Plaintiff was limited to lifting no greater than 35 pounds occasionally or 17 pounds frequently or five pounds constantly. He was told not to work at a job requiring constant bending. Plaintiff underwent independent medical examination by Dr. Gilbert Hyde, orthopedic surgeon, on March 1, 1995. Dr. Hyde also opined that plaintiff had reached maximum medical improvement and assessed 15 percent permanent partial impairment to the body as a whole. He opined the plaintiff should not lift over 25 pounds, not repetitively lift over 1 to 15 pounds, and do no prolonged riding, driving, sitting, bending, twisting or stooping. Dr. Norman Hankins, vocational specialist, evaluated plaintiff on March 13, 1995. He opined plaintiff is 48 percent to 64 percent vocationally disabled, with the variance owing to the differences in limitations placed on plaintiff by Drs. Sanders and Hyde. Plaintiff testified that he is in constant pain in his lower back and right leg. He has trouble sleeping due to the pain and cannot put any pressure on his right leg. He cannot drive, and a friend takes him where he needs to go. He does not believe he is able to work. Our review is de novo on the record with a presumption that the findings of 2 |
Knox County | Workers Compensation Panel | ||
| John Primm v. Ucar Carbon Company, Inc. 01S01-9511-CV-00204 Authoring Judge: Roger E. Thayer, Special Judge Trial Court Judge: Hon. Jim T. Hamilton, 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. Defendant, UCAR Carbon Company, Inc., has appealed from the action of the trial court in awarding plaintiff, John Primm, 65% permanent partial disability benefits to the body as a whole. Defendant contends the trial court was in error (1) in awarding 65% disability to the body as a whole, (2) in denying Defendant a set-off for payments of short-term disability insurance benefits and (3) in commuting the award to one lump sum payment. Plaintiff is 63 years of age and has a 12th grade education. He has followed construction work for many years and had worked for Defendant for 13 years prior to the time in question. During October, 1993, he was injured while using a pry bar to move a heavy metal plate. He said he felt a pinch in his back and shoulder and reported the injury to his employer. He continued to work on and off for different periods of time until his surgical procedures were over. After finally being released by his physician, he told the trial court he could not work at his old job and he elected to retire during March, 1995. The testimony of Dr. Eslick Daniel, an orthopedic surgeon, was presented by deposition. He indicated he first saw plaintiff on November 3, 1993, when he noted plaintiff had degenerative disc disease of his back and early arthritic changes of his shoulder. His first diagnosis was a shoulder and back strain and he said plaintiff did not indicate his problem was work-related. Upon seeing him a second time, his diagnosis was a rotator cuff strain with some tendinitis. He noted that between the two visits the patient had also seen a hospital emergency room doctor. Dr. Daniel had scheduled a CT Scan but plaintiff declined to take the test as he said the doctor had accused him of "faking" the injury. Dr. Daniel did not recall nor deny this conversation. Plaintiff decided to see another doctor designated by Defendant. This physician referred him to Dr. Greg Lanford, a neurosurgeon, who examined plaintiff 2 |
Maury County | Workers Compensation Panel | ||
| John Primm v. Ucar Carbon Company, Inc. 01S01-9511-CV-00204 Authoring Judge: Roger E. Thayer, Special Judge Trial Court Judge: Hon. Jim T. Hamilton, 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. Defendant, UCAR Carbon Company, Inc., has appealed from the action of the trial court in awarding plaintiff, John Primm, 65% permanent partial disability benefits to the body as a whole. Defendant contends the trial court was in error (1) in awarding 65% disability to the body as a whole, (2) in denying Defendant a set-off for payments of short-term disability insurance benefits and (3) in commuting the award to one lump sum payment. Plaintiff is 63 years of age and has a 12th grade education. He has followed construction work for many years and had worked for Defendant for 13 years prior to the time in question. During October, 1993, he was injured while using a pry bar to move a heavy metal plate. He said he felt a pinch in his back and shoulder and reported the injury to his employer. He continued to work on and off for different periods of time until his surgical procedures were over. After finally being released by his physician, he told the trial court he could not work at his old job and he elected to retire during March, 1995. The testimony of Dr. Eslick Daniel, an orthopedic surgeon, was presented by deposition. He indicated he first saw plaintiff on November 3, 1993, when he noted plaintiff had degenerative disc disease of his back and early arthritic changes of his shoulder. His first diagnosis was a shoulder and back strain and he said plaintiff did not indicate his problem was work-related. Upon seeing him a second time, his diagnosis was a rotator cuff strain with some tendinitis. He noted that between the two visits the patient had also seen a hospital emergency room doctor. Dr. Daniel had scheduled a CT Scan but plaintiff declined to take the test as he said the doctor had accused him of "faking" the injury. Dr. Daniel did not recall nor deny this conversation. Plaintiff decided to see another doctor designated by Defendant. This physician referred him to Dr. Greg Lanford, a neurosurgeon, who examined plaintiff 2 |
Maury County | Workers Compensation Panel |