Order on Petition To Rehear Upon consideration of the petition to rehear filed by the appellants Davey Joe Vineyard and Jimmy Lee Cockburn, this Court is of the opinion that the petition should be and the same is hereby denied.
Carl W. Sides v. Insurance Company of North America 03S01-9703-CV-00031
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. D. Kelly Thomas, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed this suit and alleged he had sustained permanent impairment to his eyes as the result of an injury in the course of his employment with the defendant. The trial judge awarded the plaintiff a recovery in the amount of 3% permanent partial disability to both eyes. The defendant says the evidence preponderates against the judgment of the trial court. We affirm the judgment of the trial court. The plaintiff was age 6 at the time of trial. He had a high school education and was trained as a machinist and welder. The plaintiff alleged he was injured by a welding arc on or about February 5, 1993. The plaintiff did not see a doctor until some three days after the alleged injury, when he was sent by the defendant to Dr. Louis Haun, an ophthalmologist. Dr. Haun was of the opinion the plaintiff had not been injured by a welding arc. Dr. Haun suspected the plaintiff's eye problem was caused by exposure to chemicals and inquired of the plaintiff concerning exposure thereto. From this time, the case was tried by the plaintiff and defendant on the theory that the plaintiff was suffering from a condition known as dry eyes.1 The evidence of whether the injury to the plaintiff's eyes was causally connected to the exposure to chemicals at work is based upon the testimony of the plaintiff and three doctors. The plaintiff testified that after Dr. Haun asked him to remember whether he had been exposed to any chemicals at work, he recalled coming into contact with chemicals specifically in the course of fluidizing a piece of equipment called a bed, which is used in the manufacturing process. 1 The plaintiff never filed an amendment to his petition to aver his injury was caused by chemical exposure. However, both parties tried the case on the theory of whether a chemical exposure did or did not cause the plaintiff's dry eyes. See Rule 15.2 Tenn. R. Civ. Proc. 2
Knox
Workers Compensation Panel
Karen Farmer v. Zurich-American Insurance Co. 01S01-9706-CV-00135
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Ernest Pellegrin,
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 during the course of her employment by Porter Paints she contracted asthma, an occupational disease, which resulted in partial, permanent physical disability, all of which was denied by the defendant. The trial judge found that the plaintiff suffered occupational asthma, causing her to be 5 percent permanently partially disabled and benefits were awarded accordingly. The issue presented for review is whether the finding of job-related asthma is supported by a preponderance of the evidence. I The plaintiff was initially employed by Porter paints in 1991 as a decorator. About one year later, she was transferred to a Broadway store in Nashville, which catered to commercial customers. This store prepared two- part industrial paints, referred to as epoxies, one part of which, hythane, contained a chemical known as hexamethylene diisocyanate [HDI]. an isocyanate. In 1993, the Broadway store compounded a large quantity of hythane for a customer who had contracted with Vanderbilt University to paint its stadium. The plaintiff became ill, attended by coughing and wheezing, shortness of breath and congestion. Her family physician diagnosed bronchitis, prescribed antibiotics, and recommended absence from work for one week. Upon her return, she experienced a severe episode of wheezing and shortness of breath and was instructed to leave the store. She was thereupon referred to a pulmonary specialist, Dr. Eric Dyer, who made a tentative diagnosis of asthma caused by exposure to TDI, an isocyanate commonly found in paints. 2
William Allen Frazier v. Landair Services, Inc. 03S01-9706-CV-00064
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. John Mcclellan, 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 plaintiff alleged in his petition that he was injured while unloading a trailer while in the employment of the defendant.1 The defendant filed a Motion for Summary Judgment supported by affidavits, and the plaintiff answered the motion by filing affidavits also. The trial judge granted summary judgment to the defendant and dismissed the plaintiff's petition. We affirm the judgment. The issue raised in this case is whether the plaintiff was an employee of the defendant and thus entitled to recover workers' compensation benefits for his injury. The structure of the relationship between the plaintiff and the defendant was derived from the employment of the plaintiff as a driver with a company known as Central Trucking, Inc. Landair Transport, Inc. entered into a contract with Central Trucking whereby Central Trucking would tow the defendant's trailers on shipments to the defendant's customers. The contract provided that the employees of Central Trucking would not be employees of the defendant. The plaintiff contended in his petition and affidavit that he was injured while unloading a trailer for the defendant and that all unloading fees were negotiated between him and a terminal manager of the defendant. The plaintiff claims this created an employer-employee relationship between him and the defendant. One of the owners of Central Trucking filed an affidavit in support of the plaintiff's claim that the amount to be paid for unloading was negotiated between the plaintiff and the defendant. The trial judge considered the affidavits, the contract between the defendant and Central Trucking, and various documents filed in support of and in opposition to the Motion for Summary Judgment. After reviewing the documents and hearing 1 It appears the actual defendant relevant to this case is Landair Transport, Inc. frazier.wc 2
