Sharon Abbott v. Quebecor Printing 01S01-9805-CV-00087
Authoring Judge: Joe C. Loser, Jr., Special Judge
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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer, Quebecor, insists the trial judge erred in finding that the plaintiff suffered a permanent compensable injury and that the claim is barred by the last injurious injury rule. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Abbott, initiated this action for the recovery of workers' compensation benefits for a gradually occurring injury to her right arm. After a trial on the merits, the trial court awarded, inter alia, permanent partial disability benefits based on twenty-five percent to the right arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). The claimant began working for this employer in March of 1994, feeding loads of paper into feeding pockets to make magazines. She worked four twelve hour shifts and was off for three days, then worked three twelve hour shifts and was off for four days. From the repetitive use of her right hand and arm, she gradually developed disabling pain and was referred by the employer to Dr. Cooper Beazley, who prescribed steroid injections. She was unable to work for about four weeks. Shortly after returning to work, she was involved in an automobile accident. After that accident, she did not return to work for the employer. Dr. Beazley diagnosed lateral epicondylitis or tennis elbow. He was equivocal as to whether the injury was permanent. Dr. Dewey Thomas, who examined and evaluated the claimant, assigned a permanent impairment rating of ten percent to the right arm. His testimony established a causal connection between the injury and the repetitive use of the claimant's right arm at work and was supported by the lay proof offered by the claimant. The only evidence offered at trial by the employer was the testimony of its insurance administrator, who testified that the claimant did not complain after the steroid injections. At the time of the trial, the claimant was working with pain for another employer. She testified that her disability had not increased as a result of her new job. Where a condition develops gradually over a period of time resulting in a definite, work-connected, unexpected, fortuitous injury, it is compensable as an injury by accident. Brown Shoe Co. v. Reed, 29 Tenn. 16, 35 S.W.2d 65 (1961). Trial courts are not required to accept the opinion of a treating physician over any other conflicting expert medical testimony. The trial judge did not abuse his discretion by accepting the testimony of Dr. Thomas concerning causation and permanency. The first issue is resolved in favor of the claimant. The successive or "last injurious" injury rule is that where an employee 2
Montgomery
Workers Compensation Panel
Nathan v. Harris v. Wendel Adkins d/b/a Tennessee Riders, Inc., Valiant Ins. Co. and Stephen N. Ciancio 01S01-9801-CV-00009
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Hamilton V. Gayden Jr.,
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 and its insurer contend in this appeal that the trial court erred in awarding the medical expenses of a nonauthorized provider and that the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant initiated this civil action to recover medical and disability benefits for injuries resulting from a work related accident which occurred on May 23, 1995. After a benefit review conference and trial, the trial court awarded, inter alia, medical expenses and disability benefits based on sixty percent to the body as a whole. Our 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). At the time of the trial, the claimant was thirty years old with a high school education and vocational training in automobile repair. He was in good health before the accident. On the date of the accident, the claimant was working for the employer, Tennessee Riders, operating a mower next to I-4 when his tractor was struck from the rear by a speeding pick-up truck. The truck's bumper struck him in the back and its hood struck him in the head. He was soon transported to the emergency room at St. Thomas Hospital in Nashville, where he was treated and released.1 When the accident occurred, his supervisor, Wendell Adkins, was operating a mower about one hundred yards ahead of him, but did not talk to him at the scene. However, two co-workers visited the claimant to inquire about his condition soon after the accident. He has not returned to work for Tennessee Riders. When his condition worsened, he contacted Dr. Melvin Law, who diagnosed S1 radiculopathy and two bulging discs with nerve root impingement. The doctor provided conservative care, including a back brace, and referred the claimant to a neurologist. Dr. Law assessed his permanent impairment at ten percent to the whole body and restricted him from lifting more than twenty pounds, thirty minutes of continuous standing and walking and thirty minutes of continuous sitting. The neurologist, Dr. Morgan, advised him not to return to work as a mower operator. This doctor diagnosed disequilibrium, post-concussive syndrome and intermittent paresthesias of the hands, possibly resulting from a mild spinal cord contusion or brachial plexus stretch type injury and assessed his permanent medical impairment at fourteen percent to the whole body, of which nine percent was from persistent labyrinthine vertigo. Dr. Morgan restricted the claimant from repetitive bending or prolonged standing of more than two hours and from lifting more than twenty-five pounds; and he referred 1 The claimant testified that St. Thomas refused to treat him because he did not have any identification, but performed a CT scan when he returned and demanded it. 2
State vs. Steve Paige W2001-03045-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: James C. Beasley, Jr.
In an indictment returned by the Shelby County Grand Jury on August 9, 2001, Defendant, Steve Paige, was charged with two counts of aggravated assault. The indictment alleged that both offenses occurred on January 16, 1999. At a hearing on December 6, 2001, the criminal court, sua sponte, dismissed the indictment because of the State's failure to prosecute. In its order of dismissal, the criminal court found that Defendant was arrested on January 16, 1999, the case was bound over to the grand jury on May 25, 1999, but he was not indicted until twenty-seven months later. The trial court further found that Defendant was arraigned on November 13, 2001, but the State did not have a file on the case and it had to be continued twice for that reason. When the case was called on December 6, 2001, the State could still not produce a file on the case. Accordingly, the trial court dismissed the case with prejudice for the State's failure to prosecute pursuant to Rule 48(b) of the Tennessee Rules of Criminal Procedure. The State appealed. After review, we affirm the trial court's order dismissing the case, but reverse that portion of the order dismissing the case with prejudice, and remand this case for the trial court to enter an amended order dismissing the case without prejudice.
Intervenors D. K. Hailey WreckingCompany (Hailey Wrecking) and Levy Industrial Contractors, Inc. (Levy Industrial) appeal an order of the trial court requiring them to pay the attorney fees of Plaintiff Sara Evelyn Evans incurred in a proceeding to enforce a judgment obtained by Ms. Evans against Bobby Hugh Young. For the reasons stated below, we affirm the ruling of the trial court.
Palmer vs. So. Central Correctional Facility Disciplinary Bd. M1999-01611-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
Petitioner, an incarcerated prisoner at South Central Correctional Facility, appeals the dismissal by the trial court of his petition for a writ of certiorari to review a disciplinary decision made by the Correctional Facility Disciplinary Board and approved by the Tennessee Department of Correction ("T.D.O.C."). The defendant filed a Rule 12.02(6), Tenn. R. Civ. P., motion asserting the failure of Petitioner to state a claim for which relief may be granted. The trial court sustained this motion to dismiss. We reverse.
