Brackins v. Sevier 03S01-9607-CV-00083
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Ben Hooper, Ii,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial judge found that plaintiff was 5% permanently partially disabled as a result of his work-related injury by accident. He further found that the workers' compensation carrier was entitled to a credit of $14,43.64, plaintiff's net recovery for his third-party tort settlement. He held that he could not exclude recovery for loss of consortium from plaintiff's net recovery because no specific amount of that recovery was apportioned to loss of consortium. He limited the recovery for medical expenses to plaintiff's out-of-pocket expenses. He granted the plaintiff's attorney a 2% fee from the medical expenses awarded and stated that plaintiff's attorney may have to look to plaintiff's attorney in the third-party action for the rest of his fee. The plaintiff below appeals the trial court's judgment raising the following issues: 1) Whether the evidence preponderates against the trial court's finding that plaintiff retains 5% permanent partial disability to the body as a whole. 2) Whether the trial court erred in allowing the defendant a credit against the portion of the third-party tort recovery which is attributable to plaintiff's spouse's recovery for loss of consortium. 3) Whether the trial court erred by not crediting the full amount of medical expenses against the net recovery because the plaintiff's group hospitalization insurer had not filed a subrogation claim. 4) Whether the trial court should have required the defendant to pay the plaintiff's attorney's fees. We affirm the judgment of the trial court except as to the issue of medical expenses, for which the defendant is liable in full. The plaintiff was injured in a car accident on August 1, 199 while he was traveling in the course of his employment with the Sevier County Board of Education. The plaintiff, who was 53 years of age at the time of trial, continues to work for the 2
Knox
Workers Compensation Panel
Charlotte Freeman v. Cpq Colorchrome, Inc. 03S01-9608-Ch-00089
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: EARL H. HENLEY, Chancellor
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. While lifting a machine at work, plaintiff heard or felt a "pop" in her neck and experienced a slight tingling in her hands. Because she felt little or no pain at that time, she did not immediately suspect that the "pop" and the tingling might be symptomatic of serious injury. When she developed pain in the neck a few days later after sleeping on the arm, she sought medical care and found that she had herniated two cervical disks. The trial court found the plaintiff had proved that her neck injury was caused by her work and awarded her 4 percent permanent partial disability to the body as a whole. The defendant appeals, insisting that plaintiff has not met her burden of proving that her work caused injury. We affirm the judgment of the trial court. Plaintiff, 46 years old with a G.E.D. diploma, began working for defendant's predecessor in 1986. While refinishing photo negatives on February 15, 1994, she lifted a 29-pound machine and felt or heard a "pop" in her neck and a slight tingling in her right arm. She didn't have much, if any, pain, and didn't think much about it. Plaintiff went to the work site within the next three days and, in conversation with her supervisor and two other employees, said that she thought her injury was caused by lifting the machine at work. The supervisor, Kathy Quintard, who was in- and-out of the room during this conversation, thought this was only "chit-chat" among friends. Although she heard plaintiff discuss the injury, she did not consider this to be her official notice of work-related injury, and so Ms. Quintard did not make a report of it. The evidence indicates Ms. Quintard thought that unless plaintiff came to her office and made an "official" statement, she would not be entitled to workers' compensation coverage. On February 17, 1994, plaintiff awoke with arm pain after having slept on the arm. She went to an emergency clinic that day and again on February 2, 1994, 2
Hamblen
Workers Compensation Panel
02A01-9609-CH-00226 02A01-9609-CH-00226
Trial Court Judge: William Michael Maloan
Obion
Court of Appeals
02A01-9604-CV-00073 02A01-9604-CV-00073
Trial Court Judge: James E. Swearengen
Leming vs. State 03C01-9603-CC-00119
Trial Court Judge: Thomas W. Graham
Bledsoe
Court of Criminal Appeals
Smallman v. Shelby 03S01-9607-CV-00079
Authoring Judge: John K. Byers, Senior Judge
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. The trial court below awarded plaintiff 17% permanent partial disability to each arm. Plaintiff appeals, arguing that the evidence preponderates in favor of a higher award. We affirm the judgment of the trial court. Plaintiff, who was 44 years of age at the time of the trial, has an eighth- grade education. Her previous work history has been mostly in factory assembly work. She has worked as an upholsterer of furniture for the defendant since 1984. She testified that her work requires her to pad the furniture and then cover it with fabric of some sort, which requires her to constantly pull the fabric and tack it into place with a staple gun. In the spring and summer of 1994, plaintiff began to notice some pain and swelling in her wrists and hands. She reported her problems to her employer in August and her employer referred her to Dr. Wayne L. McLemore, an orthopedic surgeon. Dr. McLemore diagnosed plaintiff with bilateral carpal tunnel syndrome related to her work activities. He attempted conservative treatment but that was unsuccessful. He then performed bilateral carpal tunnel releases with satisfactory results. He assigned plaintiff a four percent permanent impairment to each upper extremity. He testified that he did not impose any restrictions upon the plaintiff because he did not want to make it difficult for her to return to work. However, he opined that she did have some restrictions: she should avoid repetitive pulling and wrist-bending activities, heavy lifting and vibrating tools. After plaintiff returned to work in February 1995, she returned to him on July 25, 1995 with complaints of continued pain and swelling. He testified that he advised her to change her employment if it became a regular problem for her. Plaintiff's attorney referred her to Dr. Gilbert Hyde, also an orthopaedic surgeon, for an independent medical evaluation. He felt that she had continued 2
Mahler vs. Mahler 01A01-9507-CH-00303
Trial Court Judge: Henry Denmark Bell
Williamson
Court of Appeals
Hand vs. Hand 01A01-9607-CH-00325
Trial Court Judge: Allen W. Wallace
Humphreys
Court of Appeals
David Davison v. Tfe, Inc., et al 02S01-9609-CV-00078
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. C. Creed Mcginley,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer and its insurer argue the employee did not suffer an injury by accident as claimed. As discussed below, the panel has concluded the judgment should be affirmed. For the past thirty-three years, the employee or claimant, Davison, has been an over-the-road truck driver. He worked for the employer, TFE, from July 14, 1988 until June 2, 1994. On June 2, 1994, while attempting to load some boxes that had fallen from his truck while others were being unloaded, he felt a burning sensation in his back and leg. He had not felt the leg pain before but had suffered a previous back injury. He was given nerve blocks for the second injury, without relief. When the pain persisted, he visited Dr. Joseph S. Thomas, a general practitioner, and Dr. Robert Barnett, an orthopedic surgeon. Dr. Barnett diagnosed an aggravation of a pre-existing degenerative condition. The same doctor had seen the claimant before the second injury and opined that the new symptoms were the result of an irritated nerve root. The record does contain other medical opinions. Dr. Cunningham, a neurosurgeon, opined the claimant was not permanently impaired from the 1994 injury, but did not rule out the occurrence of an injury. Dr. Frazier assigned a permanent impairment rating but attributed it to the previous injury. The claimant has not returned to work. He testified that he is unable to work because of pain that he did not have prior to the 1994 accident. The trial judge gave the greatest weight to the opinion of Dr. Barnett and found the injury to be compensable as an injury by accident. 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 ifissues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When medical testimony differs, it is within the discretion of the trial judge to determine which expert testimony to accept. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). 2
Hardin
Workers Compensation Panel
James Clifford Tatum v. Methodist Health Systems, et al 02S01-9609-CH-00079
Authoring Judge: Leonard W. Martin, Special Judge
Trial Court Judge: Martin, 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. section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The director of the Workers' Compensation Division of Tennessee Department of Labor, as trustee for the Second Injury Fund (Second Injury Fund), appeals from the decision of the trial court. The court approved, over the objection of the Second Injury Fund, a settlement agreement between the employee, James Clifford Tatum, and the employer, Methodist Health Systems (Methodist Hospital of Dyersburg, Inc.), limiting the employer's liability to benefits based on 31 per cent (31%) permanent partial disability to the whole body. The claim against the Second Injury Fund was reserved until trial. The trial of the case was between the employee and the Second InjuryFund. Subsequently, at trial, the trial court found the employee to be permanently and totally disabled and held the Second Injury Fund liable for 6 per cent (6%) of that total disability. Because the court erred in approving the settlement over the objectionof the Second Injury Fund, the panel concludes that both judgments should be set aside, and the case remanded for a new trial on all issues. The trial court recognized its error and stated in its memorandum opinion of April 29, 1996, as follows: "This settlement was approved over the objection of the Fund. In retrospect, the Court should not have approved the settlement over the objection of the Fund, but should have tried both claims together." However, the trial court apparently believed that it had cured its error. We conclude otherwise. In a very recent case decided by the Supreme Court on December 23, 1996, the court reasoned as follows: Here, the trial court approved a settlement concerning the 2
