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
Anita Gardner v. World Color Press, Inc. 02S01-9609-CH-00081
Authoring Judge: Leonard W. Martin, Special Judge
Trial Court Judge: Hon. Joe G. Riley,
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 issue presented is whether the trial court erred in finding that the plaintiff sustained a 2 per cent (2%) permanent partial disability to both arms. The standard of review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); T.C.A. Section 5-6-225(e)(2). The panel finds that the evidence does not preponderate against the finding of the trial court and concludes that the judgment of the trial court should be affirmed. The employee, Anita Gardner, is thirty (3) years old and has a tenth (1th) grade education. She has obtained her GED and is currently enrolled in Dyersburg State Community College intending to become a nurse. She has worked for McDonalds Restaurant, Taco Casa Restaurant, Roseoco Gas Station and Doubleday Book Company. She went to work for World Color Press, Inc., in 1987. World Color Press prints, assembles and ships magazines. During much of her employment, she worked twelve (12) hours per day, seven (7) days a week. Her duties involved the use of her hands and wrists in a constant, fast paced, repetitive manner for long periods of time. In May of 1994, the plaintiff injured her left wrist (she is left handed), while using a manual banding device in the shipping department. In August of 1994, she began having trouble with her right wrist while working in the quality control 2
Dyer
Workers Compensation Panel
Norma Gail Flowers v. Emerson Motor Co. 02S01-9609-CH-00083
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George R. Ellis,
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, Emerson Motor Company, contends the award of permanent partial disability benefits is excessive. The panel has concluded the judgment should be affirmed. The claimant, Flowers, is 43 years old and a high school graduate. She has a certificate as a nursing assistant, but no other vocational training or education. She has worked continuously for the employer since 1972, in a variety of jobs requiring repetitive use of her hands. On December 6, 1993, the claimant slipped and fell at work, landing on the palms of her hands. Although her wrists and hands had bothered her before the fall, she was not disabled and had not seen a doctor. Following the fall, she saw Dr. Ronald Bingham, who ordered NCS/EMG studies and diagnosed bilateral carpaltunnel syndrome, moderate on the left and moderate to moderately severe on the right. Another doctor diagnosed, in addition to bilateral carpal tunnel syndrome, carpometacarpal subluxation and arthritis of the right thumb. Her carpal tunnel syndrome was found to be caused by repetitive use of her hands and wrists at work and the subluxation caused and the arthritis aggravated by the fall at work. Dr. Bourland assigned a permanent impairment rating of 15.8% to the claimant's right arm and none to the left. Dr. Joseph Boals assigned permanent impairment ratings of 2% to each arm. She is unable to perform her former duties for the employer and has pain and numbness in both hands. She cannot operate a keyboard. One vocational expert estimated her industrial disability at 6-65%; another opined she would be eligible for fewer than 25% of all available jobs. The chancellor awarded permanent partial disability benefits based on 5% to both arms. 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). The extent of an injured worker's disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., 75 S.W.2d 15 (Tenn. 1988). The extent of an injured worker's vocational disability is a factual 2
Gibson
Workers Compensation Panel
State vs. Rogers 03C01-9607-CR-00268
Trial Court Judge: Douglas A. Meyer
Hamilton
Court of Criminal Appeals
State vs. Buford 03C01-9603-CR-00096
Trial Court Judge: Stephen M. Bevil
Hamilton
Court of Criminal Appeals
Seals vs. State 03C01-9605-CC-00188
Trial Court Judge: Ben K. Wexler
Hamblen
Court of Criminal Appeals
State vs. Riffey 03C01-9602-CC-00074
Trial Court Judge: Frank L. Slaughter
Sullivan
Court of Criminal Appeals
State vs. Stamm 03C01-9602-CC-00068
Trial Court Judge: D. Kelly Thomas, Jr.
