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| David Davison v. Tfe, Inc., et al
02S01-9609-CV-00078
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
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. C. Creed Mcginley, |
Hardin County | Workers Compensation Panel | 04/17/97 | |
| Norma Gail Flowers v. Emerson Motor Co.
02S01-9609-CH-00083
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
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. George R. Ellis, |
Gibson County | Workers Compensation Panel | 04/17/97 | |
| State vs. Stamm
03C01-9602-CC-00068
Originating Judge:D. Kelly Thomas, Jr. |
Blount County | Court of Criminal Appeals | 04/17/97 | |
| Hubert Holcomb, Jr. v. Aetna Life & Casualty Co.
02S01-9610-CH-00091
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
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. William Michael Maloan, |
Obion County | Workers Compensation Panel | 04/17/97 | |
| Harold E. Mooney v. Brecon Knitting Mills, et al
02S01-9610-CV-00094
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
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Kay S. Robilio, |
Shelby County | Workers Compensation Panel | 04/17/97 | |
| X2010-0000-XX-X00-XX
X2010-0000-XX-X00-XX
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Hamblen County | Court of Appeals | 04/16/97 | |
| State., ex. rel., vs. United Physicians Ins.
01A01-9610-CH-00449
Originating Judge:Robert S. Brandt |
Davidson County | Court of Appeals | 04/16/97 | |
| 01A01-9610-JV-00493
01A01-9610-JV-00493
Originating Judge:Barry R. Brown |
Sumner County | Court of Appeals | 04/16/97 | |
| Roberts vs. Lowe
03A01-9610-CC-00333
Originating Judge:Arden L. Hill |
Johnson County | Court of Appeals | 04/16/97 | |
| 02A01-9510-CV-00240
02A01-9510-CV-00240
Originating Judge:George R. Ellis |
Haywood County | Court of Appeals | 04/16/97 | |
| El Rayford vs. Stephen Leffler (Order)
02A01-9607-CV-00162
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Court of Appeals | 04/16/97 | ||
| Brian Grant vs. Tonya Grant
02A01-9603-CV-00053
Originating Judge:Wyeth Chandler |
Court of Appeals | 04/16/97 | ||
| 03C01-9601-CC-00016
03C01-9601-CC-00016
Originating Judge:E. Eugene Eblen |
Roane County | Court of Criminal Appeals | 04/16/97 | |
| State vs. John F. Wolard
01C01-9612-CC-00532
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Montgomery County | Court of Criminal Appeals | 04/16/97 | |
| X2010-0000-XX-X00-XX
X2010-0000-XX-X00-XX
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Knox County | Court of Appeals | 04/16/97 | |
| 01A01-9508-CV-00377
01A01-9508-CV-00377
Originating Judge:Don R. Ash |
Rutherford County | Court of Appeals | 04/16/97 | |
| Gloria Gilliland vs. Gary Stanley
02A01-9603-GS-00056
Originating Judge:William A. Peeler |
Tipton County | Court of Appeals | 04/16/97 | |
| Clemmye Berger vs. Marvin Ratner, et al
02A01-9604-CV-00077
Originating Judge:James E. Swearengen |
Shelby County | Court of Appeals | 04/11/97 | |
| Mcpherson vs. Stokes, et. al.
01A01-9505-CH-00216
Originating Judge:C. Allen High |
Davidson County | Court of Appeals | 04/11/97 | |
| Draper vs. Reaver, et. al.
01A01-9609-CV-00394
Originating Judge:Marietta M. Shipley |
Davidson County | Court of Appeals | 04/11/97 | |
| State vs. Theodore Howard
02C01-9508-CR-00237
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Shelby County | Court of Criminal Appeals | 04/11/97 | |
| Hymel vs. Hymel
01A01-9703-CV-00136
Originating Judge:Muriel Robinson |
Davidson County | Court of Appeals | 04/11/97 | |
| Warren, et. vir vs. Metro Gov't., et. al.
01A01-9606-CV-00277
Originating Judge:Thomas W. Brothers |
Davidson County | Court of Appeals | 04/11/97 | |
| Bryant vs. TN. Dept. of Safety
01A01-9509-CH-00398
Originating Judge:Robert S. Brandt |
Davidson County | Court of Appeals | 04/11/97 | |
| Sliger vs. Stokes, et. al.
01A01-9609-CH-00403
Originating Judge:Vernon Neal |
Putnam County | Court of Appeals | 04/11/97 |