Workers' Compensation Opinions

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee benefits based on 54.75 percent of the scheduled member loss of hearing in both ears. On appeal, the employer contends that the claim is barred by the statute of limitations and that the trial court erred when it failed to allow counsel to read portions of the plaintiff’s deposition. The employer also appeals the award being based on a scheduled member as opposed to the body as a whole and contends that the award is not supported by the preponderance of the evidence. Finally, the employer contends that the trial court erred in its determination of the compensation rate. After a careful review of the record, we find no error in the trial court’s determination that the claim met the statute of limitations. We do find that the trial court erred in its ruling on the use of deposition testimony but find that error harmless. We find that the trial court erred in its determination of disability attributable to a scheduled member and we have modified that award. Finally, we find no error in the trial court’s determination of the compensation rate. Accordingly, the judgment of the trial court is affirmed in part, modified in part and remanded.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee suffered a 5% medical impairment to the body as a whole and determined that the employee was entitled to a permanent partial disability award of 10% to the body as a whole. The employee contests the adequacy of this award and the failure of the trial court to award the employee additional amounts as a penalty against the employer for the employer’s delay in paying temporary total disability benefits. We affirm the trial court in all respects.

In this case, the employee, Christine Pesce, suffered an acute injury to her left knee during the course of her employment with Aerostructures/Vought Aircraft Industries (Vought) resulting in the dislodging of a large osteochondral fragment in the knee. This fragment was surgically removed and her treating physician found she had sustained a loss of joint space in the patellofemoral joint. Because the injury is not covered by the American Medical Association Guides to the Evaluation of Permanent Impairment, the physicians who testified both for Ms. Pesce and Vought based their determinations on injuries that were covered by the Guides and thought by the testifying physician to be similar. The trial court found Ms. Pesce to have sustained a fifteen percent impairment to her left leg resulting in a fifty percent disability to that extremity. Vought has appealed challenging the amount of the award and the admissibility of the testimony of Ms. Pesce's treating and evaluating physicians based upon an alleged lack of their reliability. We find that the evidence does not preponderate against the disability award and that the trial court properly admitted the testimony of Ms. Pesce's expert witnesses. Accordingly, we affirm.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court our findings of fact and conclusions of law. In this appeal, the Employer, Bridgestone Americas Holding, Inc. (Bridgestone) asserts that the trial court erred in awarding to the Employee, Henry Estes, seven and one-half percent permanent partial disability to the right arm based upon inconsistent alternative findings of the trial court related to apportioning Mr. Estes’ injury to his hand. Mr. Estes alleges the injury should have been apportioned to his hand rather than the arm. We conclude the trial court correctly found Mr. Estes’ carpal tunnel injury should be apportioned to the arm and, based upon our review of the record, fix his impairment at five percent of the right upper extremity. Based upon this finding, we agree with the trial court that Mr. Estes will sustain a seven and one-half percent permanent partial disability to the right arm. Accordingly, the judgment of the trial court is affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee was entitled to a permanent partial disability award of fifty-five percent (55%) to the left upper extremity for an injury to his left arm and twelve percent (12%) to the body as a whole for loss of hearing and tinnitus. The employer contends that the evidence preponderates against both of these awards. The employee claims that this appeal is frivolous. We affirm the trial court on both awards, but conclude that the appeal is not frivolous.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. The employer, Taylor Farms Tennessee, Inc., and Zurich American Insurance Company, have appealed the trial court’s award of 50% whole body impairment to Mr. Timmons. It is the appellant’s contention that expert medical testimony fails to support the trial court’s finding that Mr. Timmons’ hip condition was aggravated or advanced permanently by the work-related injury. After carefully considering the record, we affirm the judgment of the trial court.

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer Nissan North America, Inc., asserts that the trial court erred by awarding benefits based on a 4% anatomical and 48% vocational disability rating to the lower right extremity to the employee, Tracy Brown-Harper. We affirm the judgment of the trial court.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee benefits based on permanent partial disability awards of fifty percent (50%) to each arm. On appeal, the employer contends that the trial court erred in making the fifty percent (50%) permanent, partial disability awards. The employee contends that she should be awarded damages for a frivolous appeal. We affirm, as modified, the judgment of the trial court.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred by (1) not excluding the expert testimony of Dr. Albert Brandon for lack of trustworthiness and for an opinion based upon unreliable principles and methodology; and (2) finding that the employee proved medical causation for the employee's medical condition. We affirm.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred by (1) finding that the employee suffered any vocational disability; and (2)finding that the employee was entitled to the twenty-five percent (25%) bad faith penalty for certain medical expenses. Finding that the evidence preponderates against the finding of any vocational disability in this case, we reverse the trial court's award of permanent partial disability benefits. Because the employee never asserted a claim for the bad faith penalty prior to the trial in this case, we reverse the award of the bad faith penalty. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Macon County Chancery Court, Reversed in part, Affirmed in part, and Remanded. JEFFREY S. BIVINS, SP. J., in which ADOLPHO A. BIRCH, JR., J, and CLAYBURN PEEPLES, SP. J., joined. Richard Lane Moore, Moore, Rader, Clift & Fitzpatrick, Cookeville, Tennessee, for the Appellants, CNA Insurance Company and TRW Commercial Steering Division. William Joseph Butler, E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for the Appellee, Jason Key. MEMORANDUM OPINION I. Facts The Plaintiff, Jason Key ("Key"), was thirty years of age at the time of the trial in this action. He graduated from high school. He had learned some welding skills in high school. Otherwise, he had no other certificates, degrees, or special training. His work history consists primarily of physical labor, including farm work, welding at a factory, and production work at TRW Commercial Steering Division ("TRW"), one of the defendants in this action.1 Mr. Key's job with TRW required him to set up assembly lines and keep them running. On July 15, 23, Mr. Key was attempting to repair a machine on the assembly line. While he was repairing this machine, he was hit in the head with a steel bar approximately five-eighths of an inch in diameter and between twelve and fourteen inches long. Key suffered a laceration to his forehead as a result of this accident. The laceration measured one inch or 2.2 centimeters in length. Key was taken to the emergency room where Dr. John Butcher treated him. Dr. Butcher irrigated the wound and used five stitches to close the cut. Dr. Butcher then released Key to return to work. Key returned to work the day following the accident. Key never missed a day of work as a result of the accident. Key subsequently requested additional medical care from TRW. As a result of that request, Dr. Roy Johnson, an occupational medical specialist, evaluated Key on November 13, 23. Dr. Johnson also referred Key to a plastic surgeon. On March 22, 24, Key was examined by Dr. J.D. Rosdeutscher, a plastic surgeon. Dr. Rosdeutscher examined Key and recommended surgery to revise the scar and remove a cyst that had developed. On April 7, 24, Dr. Rosdeutscher performed the surgery. Due to the size of the cyst, Dr. Rosdeutscher had to perform an open "complex closure" on the wound. Dr. Rosdeutscher felt Key made an excellent recovery. Key did complain of some sensation problems or numbness around the injury site. Dr. Rosdeutscher felt the issues were due to injury to the supraorbital nerve. The supraorbital nerve gets sensation to the forehead. Dr. Rosdeutscher testified that the supraorbital nerve is purely a sensory nerve. It does not provide any motor function. Therefore, it would not cause any loss of function in the muscles in the forehead. Dr. Rosdeutscher concluded that Key suffered a partial sensory loss, but this did not cause any functional impairment. Dr. Rosdeutscher also did not place any permanent restrictions on Key. Finally, Dr. Rosdeutscher opined that Key had no permanent impairment and that this nerve injury would not affect Key in any way vocationally. Key also saw Dr. Robert Landsberg, a board certified orthopaedic surgeon. Dr. Landsberg concurred with Dr. Rosdeutscher's diagnosis that Key suffered an injury to the supraorbital nerve. Dr. Landsberg opined that the nerve injury was permanent. In contrast to Dr. Rosdeutscher, Dr. Landsberg assigned Key seven percent (7%) impairment to the body as a whole due to his discomfort, numbness, and loss of sensation. 1Although CNA Insurance Co. also is a named defendant in this case, we will refer to both defendants as "TRW " for the sake of simplicity. 2

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. On this appeal, the sole issue presented is whether the trial court erred by failing to cap the recovery of the employee, Sherwood Dowd, at 2.5 times the medical impairment as required by Tennessee Code Annotated section 50-6-241(a)(1). The trial court found Mr. Dowd’s retirement, based, in part, upon his fear of re-injury, was reasonably related to his injury and awarded compensation amounting to four times his medical impairment rating. Finding the employer offered employment that Mr. Dowd had the ability to perform and
demonstrated a willingness to accommodate his medical restrictions, we find Mr. Dowd’s decision to retire on the basis of an apprehension of re-injury was, within the framework of the statute, unreasonable. We reverse.

This workers' compensation appeal has been referred to the Special Workers'
Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2005) for hearing and reporting of findings of fact and conclusions of law. The Employee appeals an award of 35% vocational disability to the left arm, and asserts that he is permanently and totally disabled. We vacate the judgment of the trial court, and remand for a new trial.

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the appellant employer asserts that the evidence preponderates against the trial court's award to the employee of a 39% permanent partial disability to the body as a whole, asserting that the impairment resulted from a preexisting condition. The appellant also contests the lump-sum award to the employee of $85,000.00, asserting that the appellant employer has a companion disability program. We conclude that the findings of the trial judge should be affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee Michael Shane Bost argues that the trial court erred in denying him benefits based on his failure to comply with the notice provisions of the Workers’ Compensation Law, Tenn. Code Ann. § 50-6-201 (Supp. 2003). We agree. Accordingly, we reverse the judgment of the trial court and remand this matter for entry of a judgment awarding the benefits due employee.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. New Generations, Inc. ("the Employer") has appealed the action of the trial court, which determined that Mike Curran ("the Employee") suffered a compensable injury to his right shoulder on March 19, 21, and then suffered an aggravation of that pre- existing injury on January 24, 22. The trial court found that the Employee suffered 36% permanent vocational disability to the body as a whole as a result of the first injury and 3% permanent vocational disability to the body as a whole as a result of the second injury. We have considered the evidence and conclude that the proof does not preponderate against the holding of the trial court as to the liability of the Employer. We therefore affirm the findings of the trial court with regard to these issues.

The Employer has appealed the determination by the trial court awarding compensation to the Employee. After consideration of the evidence, the Workers' Compensation Appeals Panel finds that the evidence does not preponderate against the finding of the trial court with regard to causation of the Employee's respiratory injury or the amount of vocational disability determined by the trial court.

The Employee claimed an injury to his respiratory system, which the employer denied. The trial court dismissed the action finding that the evidence did not preponderate in favor of a causal connection between the respiratory condition and the employment. After consideration of the evidence, the Workers’ Compensation Panel concludes that the evidence does not preponderate against the finding of the trial court affirms the judgment of the trial court.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court dismissed the employee's complaint. On appeal, the employee contends that the employer had actual notice of his injury on a timely basis. The employee also contends that he sustained a gradually occurring injury and that timely notice of injury was given. We affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee was entitled to a permanent partial disability award of eighty-five percent (85%) to the left lower extremity. The employee contends that the trial court erred by (1) finding that the employee was not permanently and totally disabled, and (2) commenting upon the reputation of an expert witness. The parties also raise the issue of the apportionment of liability to the Second Injury Fund if the employee is found to be permanently and totally disabled. We affirm the trial court in all
respects.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court our findings of fact and conclusions of law. In this appeal, the employer, Saturn Corporation (Saturn), asserts that the forty-five percent permanent, partial disability to the body as a whole, awarded the employee, Robert Gill, by the trial court, was excessive. We conclude that the evidence presented does not preponderate against the findings of the trial court and affirm.

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant contends that the court erred in finding a 13% anatomical impairment rating to be the appropriate anatomical impairment suffered by plaintiff and that a concomitant 90% vocational disability award for a back injury was excessive. The Tennessee Department of Labor, Second Injury Fund, adopts defendant's arguments and urges reversal of the trial court's decision. For the reasons set forth below we disagree and therefore, affirm the decision of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee contends that the trial court erred by applying the 2.5 multiplier cap to the employee’s vocational disability award pursuant to Tenn. Code. Ann.§ 50-6-241(a)(1). The employer contends that it should not be required to pay post-judgment interest on the award and that the employee’s appeal is frivolous. We affirm the trial court’s application of the cap. We further find that the employee is entitled to statutory postjudgment interest on the award. Finally, we conclude that the appeal is not frivolous.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated §50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred by (1) finding that the Plaintiff suffered a compensable work-related injury and (2) finding that the Plaintiff was entitled to an award of 23% vocational disability apportioned to her two feet. We affirm the trial court in all respects. Finally, we conclude that the appeal is not frivolous

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court our findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in failing to apply the two-and-one-half times impairment cap set forth in Tennessee Code Annotated section 50-6-241(a)(1) and that the forty-two percent permanent, partial disability to the body as a whole, awarded by the trial court, was excessive. We conclude that the evidence presented does not preponderate against the findings of the trial judge and affirm the trial court.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting of findings of fact and conclusions of law. On this appeal, the sole issue presented is whether the trial court erred by failing to cap the recovery of the employee, Holly Young, at 2.5 times the medical impairment as required by Tennessee Code Annotated section 5-6-241(a)(1). In this case, Ms. Young sustained a shoulder injury to her right shoulder resulting in surgery. Following the first surgery, Ms. Young was returned to work performing light duty for her employer, Cumberland County Medical Center (CCMC). She resigned that employment due to progressively intense pain. Thereafter, Ms. Young underwent a second surgery. She was not offered employment by CCMC following her second surgery or after she had reached maximum medical improvement. The trial court determined Ms. Young's anatomical impairment to be fifteen percent to the body as a whole, held the statutory cap of benefits contained in Tennessee Code Annotated section 5-6- 241(a)(1) did not apply, and awarded benefits based upon a fifty percent disability to the body as a whole. We affirm.