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
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
Harold E. Mooney v. Brecon Knitting Mills, et al
02S01-9610-CV-00094
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Kay S. Robilio,
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 contend the claimant's injury did not arise out of the employment and the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant, Mooney, is sixty-six years old and has three years of college and some vocational training. His primary vocation has been that of a traveling salesman. At the time of the accident, he was employed as regional sales manager for the employer and used his car to call on customers. On or about May 2, 1993, he was involved in an accident and received a blow to his chest. It is undisputed that he was on his employer's business at the time of the accident. A cardiologist diagnosed his injury as undiagnosed coronary artery disease exacerbated by chest wall trauma. When conservative care failed to produce the desired result, surgery was performed. The operating surgeon assigned a permanent impairment rating of from thirty to fifty percent and advised the claimant to retire. A vocational expert opined the claimant had a vocational opportunity decrease of ninety percent. He has not returned to work. The parties agreed to bifurcate the trial. After the first bifurcated trial, the trial judge found the claimant's injury to be compensable. After the second bifurcated trial, another trial judge awarded permanent partial disability benefits based on seventy-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 fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment are compensable. Tenn. Code Ann. section 5-6-12(a)(5). An injury is compensable, even though the claimant may have been suffering from a serious pre-existing condition or disability, if a work-connected accident can be fairly said to be a contributing cause of such injury. An employer takes an employee as he is and assumes the risk of having a weakened condition aggravated or exacerbated by an injury which might not affect a normal person. Harlan v. McClellan, 572 S.W.2d 641 (Tenn. 1978). 2
Shelby
Workers Compensation Panel
Hubert Holcomb, Jr. v. Aetna Life & Casualty Co.
02S01-9610-CH-00091
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. William Michael Maloan,
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's insurer questions the allowance of certain credits to the Second Injury Fund (the Fund). As discussed below, the panel has concluded the judgment should be affirmed. It is undisputed that the employee or claimant, Holcomb, is permanently and totally disabled from a compensable injury by accident, that his compensation rate is $294. per week and that the maximum total benefit in effect on the date of the injury was $117,6. ($294. x 4 weeks). It is also undisputed he has received from the employer's insurer temporary total and temporary partial disability benefits totaling $32,121.82 and permanent disability benefits totaling $11,76.. From a previous compensable injury, the claimant was awarded permanent partial disability benefits equating to an award based on 21.875 percent to the body as a whole, or 87.5 weeks. Thus, under Tenn. Code Ann. section 5-6-28(b)1, the Fund's maximum liability is $294. for 87.5 weeks ($25,725.5), less any credit to which it may be entitled for payments already made by the employer or its insurer. The trial court gave the Fund credit against its liability for $25,725. of temporary disability benefits, thus holding the Fund had no further liability. It allowed the employer's insurer credit against any further liability for disability payments already made in excess of that number. Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Compensable disabilities are divided into four separate classifications: (1) temporary total disability, (2) temporary partial disability, (3) 1 T.C.A. 5-6-28(b)(1)(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of such awards equals or exceeds one hundred percent (1%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards. (B) Benefits which may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund. (Emphasis supplied) 2
