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| David E. Hunter v. Goodyear Tire and Rubber Company
W2003-02143-WC-R3-CV
In this appeal, the employer insists the award of permanent benefits based on 9 percent permanent partial disability benefits to the right leg is excessive as being against the preponderance of the evidence. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Ron E. Harmon, Chancellor |
Obion County | Workers Compensation Panel | 08/20/04 | |
| Sheila Mcalpin v. Thyssen Krupp Elevator Mfg., Inc.
W2003-02578-WC-R3-CV
In this appeal, the employer insists the trial court's award of permanent partial disability benefits based on 45 percent to both arms is excessive. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Martha B. Brasfield, Chancellor |
Hardeman County | Workers Compensation Panel | 08/03/04 | |
| Joseph Cox v. Mcclane Food Service, Inc.,
W2003-01465-WC-R3-CV
This is a scheduled injury case in which the trial court awarded the Employee a recovery based on a disability rating of five percent (5%) to the Employee's right lower extremity. The Employee appealed. The issue raised on appeal is whether the trial court's findings with regard to the Employee's proper anatomic impairment rating and vocational impairment rating were contrary to the preponderance of the evidence. We remand the case to the trial court for clarification.
Authoring Judge: Larry B. Stanley, Jr., Sp. J.
Originating Judge:D.J. Alissandratos, Chancellor |
Shelby County | Workers Compensation Panel | 07/20/04 | |
| Lenita Oatsvall v. Baptist Memorial
W2003-02474-WC-R3-CV
The employer, Baptist Memorial Hospital-Huntingdon appeals a judgment awarding the employee benefits based upon a permanent partial impairment of fifty (5%) percent to the body as a whole. The hospital contends that the judgment should be reversed and dismissed because the employee failed to give proper notice of the accident and because her injury was a preexisting condition rather than an injury caused by a job-related accident. Alternatively, the employer insists that the award of fifty (5%) percent permanent partial disability to the body as whole should be modified and reduced. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: William B. Acree, Jr., Sp. J.
Originating Judge:C. Creed Mcginley, Judge |
Carroll County | Workers Compensation Panel | 07/20/04 | |
| Sharon Parker v. Emerson Electric Company
W2003-02328-WC-R3-CV
In this appeal, the employer contends that the trial court erred in considering the testimony of Dr. Joseph C. Boals, III, and that the award of thirty-five (35%) percent permanent partial disability to the body as a whole was excessive. We find these issues are without merit and affirm the judgment of the trial court.
Authoring Judge: William B. Acree, Jr., Sp. J.
Originating Judge:Julian P. Guinn, Judge |
Henry County | Workers Compensation Panel | 07/19/04 | |
| Randy Hollingsworth v. Maytag Corporation
W2003-02407-WC-R3-CV
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 ruled that the Employee's injury, superficial thrombophlebitis, did not arise out of his employment and that the Employee was therefore not entitled to workers' compensation benefits. The issue raised on appeal is whether the trial court erred in finding that the Employee's thrombophlebitis did not arise out of his employment pursuant to the Tennessee Workers' Compensation Act. We now reverse the trial court's finding and remand for hearing on the determination of vocational disability.
Authoring Judge: Larry B. Stanley, Jr., Sp. J.
Originating Judge:James F. Butler, Chancellor |
Madison County | Workers Compensation Panel | 07/07/04 | |
| Gregory Woods v. Dover Elevator Systems,
W2003-01548-WC-R3-CV
The Employer/Appellant contends: (1) that the trial court erred in determining that the Employee's injury was a compensable exacerbation of a pre-existing injury or condition without additionally finding an advancement, anatomical change, or an actual progression of the underlying disease; and (2) that the trial court erred in finding that the Employee gave proper notice of an injury to his neck and shoulder; and (3) that the trial court's award of forty-five percent (45%) permanent partial disability to the body as a whole was excessive and not supported by a preponderance of the evidence. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed.
Authoring Judge: Larry B. Stanley, Jr., Sp. J.
Originating Judge:Dewey C. Whitenton, Chancellor |
Hardeman County | Workers Compensation Panel | 07/05/04 | |
| James Walter Young v. Nashville Electric Service
M2003-00020-WC-R3-CV
. James Walter Young ("Employee") has appealed the trial court's decision in this case which held that Employee had failed to carry his burden of proof as to causation. The trial court denied workers' compensation benefits. As discussed below, the panel has concluded that the judgment of the Chancery Court should be affirmed.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 07/05/04 | |
| Margaret J. Ballinger v. Decatur County General
W2003-01358-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employee entered a court-approved settlement of her workers' compensation claim relating to an injury that occurred while she was in the course and scope of her employment. After the settlement, Employee sustained a new injury that arose out of the treatment she received for the injury encompassed by the settlement. The trial court granted summary judgment in favor of Employer, finding that Employee's injury was not a subsequent or second injury that is compensable under Tennessee Code Annotated section 5-6-28. We affirm the trial court's grant of summary judgment. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed Allen W. Wallace, Sr.J., in which Janice M. Holder, J. and E. Riley Anderson, J., joined. James S. Higgins, Nashville, Tennessee, for appellant, Margaret Ballinger. John Dean Burleson, Jackson, Tennessee, for appellees, Decatur County General Hospital and Virginia Insurance Reciprocal. Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for appellee, Department of Labor, Second Injury Fund. MEMORANDUM OPINION FACTS The facts of this case are not in dispute. On November 16, 1999, Employee entered a joint petition for approval of a settlement of her workers' compensation claim relating to a low back injury that occurred while she was in the course and scope of her employment with Decatur County Hospital. Said settlement provided for compensation based upon a seventy-two percent partial disability to the body as a whole, and also provided future medical treatment. Under the settlement agreement, Employee agreed, as set out in the order of the Court, as follows: IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the agreement reached between the parties that all claims which the employee might have, now or in the future, under the Worker's Compensation law, for temporary and permanent disability, medical expenses, including future medical expenses, or any other benefit whatsoever under the Worker's Compensation Law of Tennessee, resulting from or connected with any injury or injuries arising from an accident which occurred on or about [January 24, 1997] or at any time while employed by the employer, be compromised, settled and satisfied by the payment of $81, to the employee, including $2,48.4 which has previously been paid for permanent partial disability, and the agreement of the insurer to be contingently liable for future medical expenses with the agreement that payments of authorized and approved medical expenses are to be made as set forth in Tennessee Code Annotated _ 5-6-24 to Dr. William R. Schooley, or to whomever else he may refer her, for treatment related to the employee's alleged on the job injury and the same is hereby in all respects ratified, confirmed and approved. . . . Subsequent to the above referenced settlement, Employee received further medical treatment for her injuries arising out of her injuries of January 24, 1997, the basis of the above settlement agreement. Due to pain from her injuries, a morphine pump was placed to help her low back pain. This procedure resulted in an allergic reaction to the morphine pump. She became ill and this caused her to have a severe cough and to vomit, resulting in a ruptured disc in her upper back at the C-6 level of the spine. Employee required surgery and other treatment for this injury. ANALYSIS The trial court granted Employer's Motion for Summary Judgment. Therefore, appellate review is controlled by Tennessee Rule of Civil Procedure 56. The pleadings and evidence must be viewed in the light most favorable to the party opposing the motion. Summary Judgment is to be rendered only when it is shown that there is no genuine issue to a material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56; Hilliard v. Tennessee State Home Health Serv., Inc., 95 S.W.2d 344, 345 (Tenn. Workers' Comp. Panel 1997); Byrd v. Hall, 847 S.W.2d 28 (Tenn. 1993). Rarely are such motions an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445 (Tenn. 1991). Summary judgment should be granted -2-
Authoring Judge: Allen W. Wallace, Sr.J.
Originating Judge:C. Creed McGinley, Circuit Judge |
Decatur County | Workers Compensation Panel | 06/30/04 | |
| Eva D. Brown v. Purodenso Company
W2003-01181-WC-R3-CV
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 to the Supreme Court of findings of fact and conclusions of law. The employee tripped and fell on both knees while at work. The trial court dismissed the complaint after finding that the employee failed to prove by a preponderance of the evidence the injuries to both knees resulted in any permanent physical impairment or that her physical condition was caused or aggravated by her fall at work. The employee contends that the trial court erred in finding: 1) that her injuries were not caused by her work injury; 2) that she did not suffer permanent disability; and 3) that the employer complied with workers' compensation law since the employer failed to pay for necessary surgery and for her permanent disability. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP.J., joined. Ruby R. Wharton and Cynthia A. Pensoneau, Memphis, Tennessee, for the appellant, Eva D. Brown. John D. Burleson and John D. Stevens, Jackson, Tennessee, for the appellee, Purodenso Company. MEMORANDUM OPINION Ms. Eva Brown was 45 years old at the time of trial. She has worked in factories since graduating from high school in 1975. She is divorced and the mother of 2 children over the age of 18. In October of 1996 she began working for Purodenso Company, a manufacturer of automobile air filters. Ms. Brown worked as a "panel pleater" operating a machine that folds the paper product used to make air filters. On January 4, 1999, while working at Purodenso, she tripped over a bin and fell onto the bare concrete floor landing on her hands and knees. After being helped up by another employee, she reported her injury. Later that same day she saw Dr. Gilbert Woodall, the company doctor, complaining of pain and swelling in both knees. He prescribed medication and a knee brace for her right knee. She returned to work and finished her shift. The next day she worked a regular shift doing light duty work. When she continued to complain of knee pain, Dr. Woodall referred her to Dr. Michael Cobb, board certified orthopedic surgeon. On February 3, 1999, Dr. Cobb diagnosed Ms. Brown as having a bruised right knee. He noted that Mrs. Brown reported diffuse tenderness during his exam: "She is tender everywhere." He found no effusion or swelling and no "localized tenderness to the joint lines that would indicate a cartilage problem." He prescribed exercises and released her. On February 24, 1999, Ms. Brown returned to Dr. Cobb complaining of right knee pain. He found "fine crepitance... [a] roughness feeling in her kneecap joint, but that was also present in her left knee." In his opinion, this common condition "had been there before" because it was present in both knees and was not caused by trauma or injury. He diagnosed a bruised knee with kneecap pain and gave her a cortisone injection. On March 1, 1999, Ms. Brown saw Dr. James T. Craig, Jr., board certified orthopedic surgeon, upon referral of her personal physician. She reported pain and grinding in both knees but the most pain in her right knee. He noted that "she did not have any swelling or any fluid in either one of her knees." He found that she did have "crepitation or grinding under the kneecaps on both knees when she flexed or extended her knees." He diagnosed early degenerative arthritis in both knees and chondromalacia of the patellae, a wearing of the cartilage behind the kneecap. He gave her a cortisone injection and recommended anti-inflammatories. On March 18, 1999, she returned to Dr. Cobb's office complaining of "diffuse ill-defined" right knee pain. Dr. Cobb found: "[N]o sign whatsoever of any fluid on the knee. She again was tender wherever I touched, not more so at the joint lines or other important landmarks. She had full range of motion. All ligaments again were stable. I again noted the kneecap crepitance." He reported: "I cannot correlate any of her subjective complaints of pain with any physical findings." He testified: "[W]hen they're tender everywhere [instead of more so at the source of the injury], that affects their credibility to me." Dr. Cobb found no sign of impairment or serious injury and did not assign permanent restrictions. In his opinion, it was possible but unlikely, that chondromalacia could be accelerated by a fall, but in Ms. Brown's case "she had no signs whatsoever that she had an injury in her kneecap area when I saw her on three visits." Ms. Brown then returned to Dr. Craig who found that an MRI did not reveal any cartilage tears, ligament or meniscal injury. Because of her continued complaints of pain, Dr. Craig recommended arthroscopic surgery. On October 12, 2, Dr. Craig performed an arthroscopy and found damage to the cartilage behind the knee cap called chrondromalacia. He performed a chrondoplasty to smooth the area down. He found she reached maximum medical improvement on 2
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:C Donald H. Allen, Judge |
Madison County | Workers Compensation Panel | 06/30/04 | |
| Ronald Eugene Jones v. Cracker Barrel Old Country
E2002-01681-WC-R3-CV
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 its findings of fact and conclusions of law. The employer, Cracker Barrel Old Country Store, Inc., argues that the trial court erred by: (1) evaluating the permanent total disability claim of the employee, Ronald Eugene Jones, pursuant to Tenn. Code Ann. _ 5-6-242 instead of Tenn. Code Ann _ 5-6-27(4)(B); (2) finding the employee entitled to permanent total disability benefits when the preponderance of the evidence indicated he could return to "an occupation which would produce an income"; (3) holding the employee's claim was not limited to the multipliers established by Tenn. Code Ann. _ 5-6-241; and (4) entering the order of judgment without a reapportionment clause compelling the second injury fund to reimburse the employer in the event the employee dies before reaching age sixty-five.1, 2, 3 We agree with the employer that a permanent total disability claim should be evaluated on the basis of Tenn. Code Ann. _ 5-6-27(4)(B); the preponderance of the evidence indicates he could return to "an occupation which would produce an income"; and his claim is governed by the Tenn. Code Ann. _ 5-6-241 multipliers. While the last issue concerning a reapportionment clause is pretermitted, we nevertheless disagree with the employer. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court 1 The employer complains about the dismissal of the appeal when the notice of appeal and transcript of the evidence were filed prior to the entry of the final judgment, since Rule 4(d) of the Tenn. R. App. P. permits a prematurely filed notice of appeal to be treated as filed after the entry of judgment and on the day of its entry. The per curiam order of the Supreme Court dismissed the appeal on February 13, 23, not because the transcript had not been timely filed as thought by the employer, but because the final judgment had not been entered. However, the final judgment had been entered in the trial court on February 6, 23. 2 The employee states the issues in a slightly different manner. They will be inherently discussed as we discuss the employee's complaints. 3 The second injury fund takes the same position as the employer except on the reapportionment clause issue. Reversed in Part, Modified in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, SP. J., joined. James T. Shea IV, Knoxville, Tennessee, attorney for Appellant, Cracker Barrel Old Country Store, Inc. Roger L. Ridenour, Clinton, Tennessee, attorney for Appellee, Ronald Eugene Jones. Paul G. Summers, Attorney General and Reporter, E. Blaine Sprouse and Richard M. Murrell, Assistant Attorney Generals, for Appellee, Sue Ann Head. MEMORANDUM OPINION I. Factual Background Ronald E. Jones, the employee, was forty-six years old when this cause was tried. He left high school in the eleventh grade, has no general equivalency diploma and has no other formal training or education. After he dropped out of school he took care of his grandfather, who had a heart condition. Years later he took a job as a laborer for a construction company. Next, he worked as a night watchman for approximately five years. Then he took a job with Cracker Barrel Old Country Store, Inc., the employer. He worked for the employer for fifteen years, washing dishes, bussing tables and unloading trucks. On December 27, 1992, while in the employ of the employer, the employee sustained a knee injury. He returned to work with restrictions against stooping, bending and squatting. He settled this workers' compensation claim for 15 percent to the body as a whole. On April 23, 1998, the employee, while working for the employer, sustained an injury to his neck, which was diagnosed as a cervical radiculopathy at C7. This workers' compensation claim was settled on January 22, 22, for 19 percent to the body as a whole. He returned to work after the neck injury, but on September 18, 1998, while lifting a case of green beans at work, the employee sustained an injury to his low back. He was treated by Dr. Cletus J. McMahon, Jr., an orthopedic surgeon, who diagnosed the employee's injury as a low back strain, an injury to the soft tissue, the ligaments, muscles and tendons. Dr. McMahon discharged the employee from his care on March 29, 1999, assigning him a 5 percent impairment to the body as a whole. The employee returned to work for the employer with the primary restriction of no lifting over twenty-five pounds. He worked a modified schedule of 18 to 2 hours until he quit because of pain in June, 1999. -2-
Authoring Judge: H. David Cate, Sp. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 06/30/04 | |
| Samuel Warren v. Auto-Owners Insurance Company
W2003-02017-WC-R3-CV
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 to the Supreme Court of findings of fact and conclusions of law. The employer argues that the Chancellor erred in determining that the employee suffered a compensable injury to his right leg and in awarding lump sum benefits. After reviewing the record and applicable authority, we conclude that the evidence in the record does not preponderate against the Chancellor's finding that the employee suffered a compensable injury to his right leg, but we also conclude that the Chancellor erred in awarding the employee lump sum benefits. Accordingly, the judgment is affirmed in part and reversed in part. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part E. RILEY ANDERSON, JUSTICE, in which JANICE M. HOLDER, J., and ALLEN W. WALLACE, SR. J., joined. Kyle C. Atkins and Paul B. Conley, III, Humboldt, Tennessee, for the Appellant, Auto-Owners Insurance Company. Robert B. Vandiver, Jr., Jackson, Tennessee, for the Appellee, Samuel Warren. MEMORANDUM OPINION BACKGROUND On September 9, 22, in Jackson, Tennessee, the employee, Samuel Warren, was injured as he stepped out of a customer's car that he had test-driven for his employer, Dennis Mitchell Automotive. Warren filed a claim for workers' compensation benefits in the Chancery Court of Madison County, Tennessee.1 The following evidence was presented at trial. Samuel Warren, age 34, testified that he had worked as an automotive mechanic for Dennis Mitchell Automotive since February of 2. Warren's duties included maintenance and basic repairs of engines, struts, shocks, and tires. Warren was also responsible for test-driving customers' cars after repairs were made. As to how his injury occurred, Warren testified: As I stepped out of the car, I felt something -- it felt like it was under my foot or something. It felt like my foot rolled or something. I heard a loud pop, and I immediately couldn't put any weight on my foot. After notifying his employer, Warren went to the emergency room of Humboldt General Hospital in Humboldt, Tennessee. On the day after the injury, Warren's employer referred him to Convenient Care, a division of The Jackson Clinic, where he was seen by Dr. Melanie Hoppers who took x-rays, which revealed a broken foot, and placed him in a Cam walker. Warren was referred by Dr. Hoppers to Dr. Rodney Staton, a board certified podiatrist. Dr. Staton testified that he examined Warren on September 26, 22, and that he reviewed Dr. Hoppers' record and history of September 1, 22, which stated "he was getting out of a customer's car when he stepped out the wrong way and injured his right foot." Warren gave the following history to Dr. Staton: His chief complaint was he broke his foot. He stated that on September 1th, he stepped out of a customer's car while at work, heard a pop in his right foot and felt sharp pain. At that time, he went to Humboldt General Hospital, and then to Convenient Care where he was told that he had a broken fifth metatarsal and was placed in a Cam walker. Dr. Staton said that additional x-rays taken on September 26, 22, revealed that the fracture site had "widened" and that the fractured pieces were "coming apart." He performed surgery to clean the two ends of the fracture and to insert a screw in Warren's right foot that would hold the fractured bones 1 The workers' compensation claim was filed against the appellant in this case, Auto-Owners Insurance Company, which was the employer's insurance carrier. -2-
Authoring Judge: E. Riley Anderson, Justice
Originating Judge:James F. Butler, Chancellor |
Warren County | Workers Compensation Panel | 06/21/04 | |
| Western Express, Inc. v. Giovanni Orlando
M2003-01533-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in adopting the medical opinion of Dr. Richard Fishbein over the opinion of Dr. Todd Bonvallet with respect to permanent medical impairment. The employer also contends that the trial court erred in awarding 26% permanent partial disability. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. J. Bartlett Quinn, Chattanooga, Tennessee for appellant, Western Express, Inc. James S. Stephens, Manchester, Tennessee, for appellee, Giovanni Orlando. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2); Stone v. City of McMinnville, 896 S.W. 2d 548, 55 (Tenn. 1995). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND At the time of trial, Giovanni Orlando was thirty-four years old. He grew up and graduated from high school in Italy. After high school, he served in the Italian Army and received an honorable discharge. He then immigrated to the United States. Since coming to the United States, he has worked primarily as a truck driver. The injury in the instant case occurred in March 21. Orlando had been unloading water heaters and awakened the following morning with pain in his back. He had suffered a previous work-related injury to the same area of his back. The previous injury required surgery and Orlando received a court-approved award for permanent partial disability and future medical benefits. OPINIONS OF THE MEDICAL EXPERTS Dr. Todd Bonvallet treated Orlando for his March, 21 back injury. Following a period of conservative treatment, Dr. Bonvallet performed a surgical procedure on Orlando's back. Dr. Bonvallet, in his first deposition taken on September 6, 22, opined that at the time the employee returned to work in April, 22, he had suffered a 12% permanent partial disability to the whole person. Dr. Bonvallet gave a second deposition on December 13, 22 in which he opined that Orlando should receive a 2% permanent partial impairment rating for the second injury since he had already received 1% for the first injury to the same area. Upon cross- examination, Dr. Bonvallet agreed that an additional 1% impairment rating was appropriate and opined that Orlando had a 3% permanent partial impairment to the body as a whole as a result of the second back injury. Dr. Richard Fishbein examined Orlando and opined that Orlando retained a 2% permanent partial impairment rating after the second back injury with 5% to 8% attributed to the first injury. Dr. Fishbein then arrived at a rating of 13% permanent partial impairment to the body as a whole as a result of the second back injury. The trial court gave more weight to the medical opinion of Dr. Fishbein than to the opinion of Dr. Bonvallet. In its memorandum opinion, the trial court stated that, "[i]n this case the treating physician, for whatever reason, followed his own methods as to the evaluation. In a supplemental deposition, he reluctantly added an additional 1% to his original 2% medical impairment rating. On the other hand, Dr. Fishbein in considerable detail explained his conclusions regarding a 13% medical impairment rating. When comparing the explanation given by the two physicians, I conclude that
Authoring Judge: Roger A. Page, Sp. J.
Originating Judge:Buddy D. Perry, Judge |
Marion County | Workers Compensation Panel | 06/14/04 | |
| Roadway Express, Inc. v. Baron Jenkins
M2003-00974-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in holding that the employee proved by a preponderance of the evidence that the aggravation of his pre- existing back condition was caused by a June 23, 1999 work-related accident. The employer also argues that the trial court erred in holding that the employee had proven by a preponderance of the evidence that he suffered a 4% permanent partial disability to the body as a whole as a result of the same work-related accident. The employer has filed a motion requesting that this Court consider post-judgment facts. Specifically, the employer requests that this Court consider the fact that the employee returned to work for the employer during the pendency of this appeal. Under the unique circumstances of this case, we decline to consider the post- judgment facts. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. David T. Hooper, Brentwood, Tennessee for appellant, Roadway Express, Inc. Peter M. Olson, Clarksville, Tennessee, for appellee, Baron Jenkins. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code. Ann. _ 5-6-225 (e)(2); Stone v. City of McMinnville, 896 S.W. 2d 548, 55 (Tenn. 1995). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND At the time of the final proceeding in the trial court, Baron Jenkins was thirty-eight years old and had a high school education. He served in the United States Marine Corps and received an honorable discharge. Since his discharge from service, his employment has consisted of working in a janitorial service, in a tile manufacturing plant, as a landscaper, as a truck delivery person, or in other labor intensive employment. Almost all of his previous employment involved heavy lifting. In June 1999, Jenkins was a "dock checker" at Roadway Express. This job required him to unload freight from trailers and load the freight onto other trailers. On June 23, 1999, Jenkins was lifting a heavy dock plate and injured himself. That evening, he complained of shortness of breath and pain in his rib cage. Jenkins expressed a fear that he might be having a heart attack. He was transported by ambulance to Southern Hills Medical Center where he was treated by Dr. David Schroeder, a board-certified emergency room physician. Dr. Schroeder's examination revealed pain in the chest wall that was treated by an injection of Demerol. Dr. Schroeder opined that Jenkins had pulled a muscle. Jenkins returned to work that evening and indicated on the Employee's Notice of Injury or Recurrence that he had chest pains and back muscle strains around his right rib cage related to pulling up a dock plate at work. On June 24, 1999, the very next day, Roadway Express denied workers' compensation benefits after determining that Jenkins had not suffered a heart attack. Approximately four days after the injury, Jenkins sought emergency treatment at Gateway Medical Center in Clarksville, complaining of a low back injury and pain in his right leg. He was treated by Dr. Stephen Kent. Dr. Kent had previously treated Jenkins on December 13, 1998 for a back injury unrelated to his employment. Jenkins was subsequently referred to Dr. Lloyd Walwyn, a board-certified orthopedic surgeon, for an independent medical evaluation. Dr. Walwyn completed a Form C- 32 on
Authoring Judge: Roger A. Page, Sp. J.
Originating Judge:Irvin H. Kilcrease, Jr., Chancellor |
Davidson County | Workers Compensation Panel | 06/14/04 | |
| SUSAn J. Smith v. S-R of Tennessee
W2003-01733-WC-R3-CV
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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, Employer argues that the trial court's award of benefits based on 55% permanent partial disability to the right upper extremity and 45% permanent partial disability to the left upper extremity is excessive and is not supported by a preponderance of the evidence. We conclude that the evidence fails to preponderate against the trial court's award, and therefore, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Trial Court Affirmed JANICE M. HOLDER, J., in which ROBERT L. CHILDERS, SP.J., and WILLIAM B. ACREE, SP. J., joined. William B. Walk, Jr., Memphis, Tennessee, for the appellant, S-R of Tennessee. J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Susan J. Smith. MEMORANDUM OPINION FACTUAL BACKGROUND At the time of trial, the appellee, Susan J. Smith ("Employee"), was fifty-nine years old. She has a high school education. Employee has been a housewife and has performed secretarial work. She also has worked on a conveyor line, built furniture, and stocked and packed compact disks. In December 1999, Employee began working at S-R of Tennessee ("Employer") as an inspector on an inspection line. In April 2, Employee saw Dr. Salman Saeed with complaints of neck pain and pain in the hands. He performed a nerve conduction study, and the results were consistent with bilateral carpal tunnel syndrome. In November 2, Employee saw Dr. Michael Heck, a panel physician, complaining of bilateral wrist pain. Dr. Heck performed a carpal tunnel release on Employee's right wrist in November 2, and in January 21, he performed a carpal tunnel release on her left wrist. Dr. Heck found no permanent impairment as a result of bilateral carpal tunnel syndrome. Employee was later diagnosed as having a separate injury to her right wrist (a tear of the triangular fibrocartilage complex ("TFCC ")), and Dr. William L. Bourland performed surgery for this problem in August 21. He assigned a 5% anatomical impairment rating for this injury. Dr. Joseph Boals, III, who performed an independent medical evaluation of Employee, assigned an anatomical impairment rating to each upper extremity based upon bilateral carpal tunnel syndrome and assigned an additional impairment rating to the right upper extremity for the TFCC tear. He rated Employee's anatomical impairment at 19% to the right upper extremity and 1% to the left upper extremity. Dr. Boals explained that he assessed Employee's impairment using the most recent edition of the AMA Guides. In February 23, Dr. Saeed performed another nerve conduction study, and it showed that although Employee evidenced "mild improvement" from the earlier study in 2, she continues to have symptoms of bilateral carpal tunnel syndrome. He opined that these injuries are permanent. Employee returned to full-duty work for Employer. However, Employer later laid off a substantial number of people, including Employee. Employee testified that she continues to have pain, numbness and weakness in her right hand, despite the surgery. She said that she wears a brace on her hand while driving but that she still experiences pain when turning or twisting her arm. She stated that she has difficulty squeezing, cutting, grasping, using power tools and doing fine needlework. Employee also said that she cannot take the top off a soda bottle or a jar and cannot lift heavy plates. In addition, she explained that she is unable to cast a fishing rod or throw a Frisbee with her dog. She still hurts "all the time." The trial court found that Employee sustained a vocational impairment of 55% permanent partial disability to the right upper extremity and a 45% permanent partial disability to the left upper extremity.1 1An injury to both arms is a scheduled injury. See Tenn. Code Ann. _ 5-6-27 (3)(A)(ii)(w) (1999). To conform to the statute, a trial court should average the disability rating to each upper extremity in order to make a single award for both arms. Scales v. City of Oak Ridge, 53 S.W .3d 649, 651 n.1 (Tenn. 21); Drennon v. Gen. Elec. Co., 897 S.W .2d 243, 247 (Tenn. W orkers' Comp. Panel 1994). W e note, however, that properly calculated, the total number of weeks of benefits would remain the same. -2-
Authoring Judge: Janice M. Holder, J.
Originating Judge:Martha B. Brasfield, Chancellor |
Smith County | Workers Compensation Panel | 06/09/04 | |
| Catina L. Fason v. Spherion
W2003-02406-WC-R3-CV
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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, Employer argues that the trial court's finding that Employee's injury was causally related to her October 2, 2 accident is not supported by a preponderance of the evidence. We conclude that the evidence fails to preponderate against the trial court's award, and therefore, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Trial Court Affirmed JANICE M. HOLDER, J., in which E. RILEY ANDERSON, J., and ALLEN W. WALLACE, SR. J., joined. Joshua M. Booth, Knoxville, Tennessee, for the appellant, Spherion. Christopher L. Taylor, Memphis, Tennessee, for the appellee, Catina L. Fason. MEMORANDUM OPINION FACTUAL BACKGROUND Catina L. Fason ("Employee") was 23 years old at the time of trial. She has a high school diploma, and her work history consists mainly of positions as cashier, hostess, and waitress. In August 2, Employee began working for Spherion ("Employer"), a temporary service. On October 2, 2, Employee was involved in an accident at work during which she injured her right arm when she unplugged a computer and was shocked. Employee complained of pain, tingling, numbness, and discoloration in her right arm following the electrical shock. She filled out an incident report with her left hand and then was taken to an emergency room. Employee was later seen by a panel physician who referred her to Dr. Cape, a neurologist, for a nerve conduction study. Dr. Cape examined Employee on November 9, 2. He opined that although Employee had "very, very mild carpal tunnel syndrome," her injury on October 2, 2, did not have any causal relationship to the carpal tunnel syndrome. Dr. Cape noted that Employee did not exhibit hypersensitivity in her right arm and hand, that Employee's skin did not have any changes to indicate a severe shock, and that the nerves that would have been expected to be affected by receiving an electrical shock while unplugging an electrical cord, the nerves of the index and middle fingers, were completely normal. He testified that Employee was not a candidate for carpal tunnel surgery when he saw her and that he could not have assigned Employee an anatomical impairment rating based upon the results of his examination. Employee continued to experience problems with her right arm, so she sought treatment from her family physician, Dr. Faulkner. Dr. Faulkner referred her to Dr. Lindermuth, who performed a carpal tunnel release in January 22. Employee said that although she experienced some relief following the surgery, she has had ongoing problems with pain and numbness. Dr. Joseph C. Boals, III, performed an independent medical examination of Employee in August 22. He noted that Employee had a positive Phalen's test, decreased sensation, and swelling in her right hand. Dr. Boals opined that Employee's carpal tunnel syndrome was caused by the electrical shock she received on October 2, 2. He admitted that a diagnosis of carpal tunnel syndrome as a result of a shock injury is "rare," that he made the diagnosis "simply by association," and that he is unfamiliar with any medical literature that documents this phenomenon. However, Dr. Boals stated that he has personally seen about ten other patients who had no carpal tunnel syndrome symptoms until after receiving an electrical shock. Dr. Boals assigned Employee a 2% permanent physical impairment rating to her right upper extremity. Employee stated that she had no significant problems with her right arm prior to receiving the electrical shock at work. She testified that pain, numbness, and tingling in her right arm continues. Employee said that she has difficulty cooking, cleaning, driving, lifting her child, combing her hair, and opening jars. She also said that her sleep has been affected because she awakens at night with numbness and pain. The trial court found that Employee's injury was causally related to her employment and awarded Employee benefits based upon a 5% permanent partial disability to her right arm. ANALYSIS 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. _ 5-6-225(e)(2) (Supp. 23). Where medical testimony differs, it is within the -2-
Authoring Judge: Janice M. Holder, J.
Originating Judge:Walter L. Evans, Chancellor |
Shelby County | Workers Compensation Panel | 06/09/04 | |
| Robert S. Shipley v. Ryder Truck Rentals, Inc.
E2003-01346-WC-R3-CV
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 its findings of fact and conclusions of law. In this appeal the employer complains that the trial court was in error (1) by allowing the surprise live testimony of Dr. C. M. Salekin contrary to the agreement of the parties and the court's prior orders; and (2) in awarding the employee 1 percent permanent disability to the left eye when the employee was legally blind in the left eye prior to the alleged injury and plaintiff failed to prove any loss of use. We disagree and affirm the trial court on these two issues. The employer also complains that the trial court erred in awarding prejudgment interest. We agree and reverse. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, Sp. J., joined. Daniel C. Todd, Nashville, Tennessee, for Appellant, Ryder Truck Rental, Inc. David H. Dunaway, LaFollette, Tennessee, for Appellee, Robert S. Shipley MEMORANDUM OPINION I. Factual and Procedural Background The employee, Robert S. Shipley, was fifty-eight years old at the time of trial. He went to the eighth grade in school. He drove a truck, farmed and became a long-haul truck driver. He has been employed as a long-haul truck driver during substantially all of his employed years. He became employed by Ryder Truck Rental, Inc., the employer, in 1998. The employer leased its trucks to Universal Furniture, and the employee began hauling furniture in March 1998. In May 1999, the employee sustained a detached retina of the left eye, while unloading furniture. There was no workers' compensation claim made for this injury. In June 1999, the retina of his left eye again detached. It was reattached surgically on July 3, 1999, by Dr. John Hoskins, an ophthalmologist. On January 1, 2, Dr. Hoskins did a follow-up procedure on the left eye, amounting to a removal of silicone oil from the eye. In February 2, he had another left eye recurrent retinal detachment, which was repaired surgically on February 28, 2. After this surgery on July 24, 2, the vision in his left eye tested at 2/4, which was considered to be legally blind.1 Although he was driving a truck for the employer, the lack of vision would have prohibited him from having a commercial driver's license. On August 1, 2, the employee was driving a truck for the employer when the truck was struck by another vehicle traveling the wrong way on Interstate 75 near Chattanooga, Tennessee. The employee observed the injuries of the other driver and watched as he died. He sustained a head injury on the left-hand side of the door and his eye started quivering. The employee was seen at the Cleveland Community Hospital emergency room the day of the accident. While there, approximately four hours after the accident, the employee had a diastolic blood pressure reading of 113. A normal diastolic reading would be below 85 or 8, depending on the doctor. He has suffered from hypertension for several years. The employee worked approximately three weeks in September 2, but has not worked since. Since the accident the employee has been treated by the following physicians: Dr. Luis C. Pannocchia, family practice doctor; Dr. John C. Hoskins, ophthalmologist; and Dr. Kelley Walker, a psychiatrist. He has been evaluated by the following: Dr. Ben Bursten, a psychiatrist; Dr. C.M. Salekin, a neurologist; and Dr. Norman E. Hankins, a vocational evaluator. The vision in his left eye has decreased since the accident from 2/4 and reading the larger "E" on the chart to counting fingers at two feet and not being able to read the larger "E" on the chart. After this cause was commenced, a scheduling order was entered on May 29, 22, which provided that the parties would disclose their Rule 26 experts and statements and no expert would 1 The employee had a detached retina of the right eye but he has normal vision in that eye. -2-
Authoring Judge: H. David Cate, Sp. J.
Originating Judge:Richard Ladd, Chancellor By Designation |
Knox County | Workers Compensation Panel | 05/28/04 | |
| Sharon D. Keller v. National Healthcare Corporation
2003-01527-WC-R3-CV
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 awarded the employee 42 percent permanent partial disability as a result of a rotator cuff tear injury. The employer contends the evidence preponderates against the award. Other issues relate to the award of temporary total benefits, proper notice and the statute of limitations. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Paul Campbell III, Chattanooga, Tennessee, for Appellant, National Healthcare Corporation. John Mark Griffin, Chattanooga, Tennessee, for Appellee, Sharon D. Keller. MEMORANDUM OPINION The employer, National Healthcare Corporation, has appealed from the trial court's action in awarding the employee, Sharon D. Keller, 42 percent permanent partial disability to the body as a whole. Factual Background The employee, a fifty-one year old high school graduate, was working as a medical receptionist during March 19991 when she testified she injured her right shoulder while moving a box of medical records. She described the incident as causing a "stabbing horrible pain" in her shoulder. She said she immediately told office Manager Tina Cline, who was also working in the general area. Ms. Cline admitted being told of the incident and said she told Ms. Keller to not do anymore lifting. She stated she did not fill out an accident report but probably should have. When pressed by counsel as to why she did not fill out a report, she responded that the office was in the process of closing, records were being packed and sent to another location, and it was just a chaotic time and she just never got around to doing it. She also testified that her supervisor, Janet Avery, was aware of Ms. Keller having hurt her shoulder while working. Ms. Cline left this employment during May 1999. The employee sought medical treatment from Dr. Lester F. Littell, a physician she had been seeing for other problems. An MRI report indicated she had a right rotator cuff tear and surgery was performed on May 2, 1999. After recovering from surgery, she worked on a part- time basis for Dr. Littell from August 1, 2 until December 2, when he relocated his practice. She also worked some for a Dr. Driskin, who took over Dr. Littell's practice. Since then and up to the time of the trial, she has worked as a sitter for different patients. Witness Janet Avery testified she was the regional contract account manager for the employer and that her first knowledge of a work-related injury was not until August 1999 when she talked with Ms. Keller by phone. Dr. Lester F. Littell, an orthopedic surgeon, was the only medical witness and testified by deposition. He stated Ms. Keller had been under his care for some period of time and that he had operated on both of her knees due to a congenital condition. He repaired the rotator cuff tear on her right shoulder during May 1999 and felt by history she had sustained the injury while lifting or moving the box of medical records. He was of the opinion she had a 7 percent medical impairment to the body as a whole and said her recovery period would be from three to six months. His records were filed as an exhibit to his deposition and they indicated she reached maximum medical improvement during November 1999. Other statements in the records indicated she was totally disabled from April 13, 1999 to August 27, 1999. Restrictions on reaching and lifting were imposed. Issues on Appeal The employer has raised a number of questions on appeal which we find narrows down to the following issues. The employer contends (1) the employee failed to give proper notice of the injury, (2) the statute of limitations had run on the claim, (3) the court was in error in awarding temporary total disability payments, and (4) the evidence preponderates against the award of 42 1 The time of the incident was in dispute. The employee originally stated the incident happened during February 1999 but later amended the complaint to allege the injury occurred during mid-March 1999. -2-
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:W. Frank Brown III, Chancellor |
Knox County | Workers Compensation Panel | 05/26/04 | |
| Michael L. Collins v. Advent Electric d/b/a Encompass
E2003-01072-WC-R3-CV
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 awarded the employee 7 percent permanent partial disability. The insurance carrier contends the trial court was in error in finding (1) proper notice of injury had been given, (2) the action was timely filed and not barred by the one year statute of limitations, and (3) the expert medical testimony was sufficient to establish causation of injury. Judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Linda J. Hamilton Mowles, Knoxville, Tennessee, for Appellant, Insurance Company Of The State Of Pennsylvania. James M. Davis, Morristown, Tennessee, for Appellee, Michael L. Collins. MEMORANDUM OPINION The insurance carrier, Insurance Company Of The State Of Pennsylvania, has appealed from the trial court's action in awarding the employee, Michael L. Collins, 7 percent permanent partial disability to the body as a whole. Factual Background Employee Collins, a forty-eight-year-old high school graduate with vocational training, was employed as an electrician by Advent Electric Company1 during November 1999 when he sustained an injury as a result of falling from a ladder at the Nova Corporation job site. He stated he was pulling electrical wires when the ladder twisted causing him to fall to the concrete floor where he struck his head and shoulder. He testified he immediately felt a burning sensation in the back of his neck and he cut his back by striking the corner of a metal transformer. The incident happened near the end of the workday and he said he did not think he was seriously hurt. Several days later, his supervisor, Rick McIntosh, came to the job site to pick up some materials and he stated he told McIntosh that he had fallen from the ladder. He said the supervisor then asked if he had gone to see a doctor and he replied he did not think it was necessary. After several months, he began to experience problems with his arm becoming numb and shoulder pain and he finally went to see his family doctor, Dr. Kenneth Hill. He told the doctor he thought he was having some bursitis problems and he was later given cortisone injections. After some period of time while under Dr. Hill's care, it was decided that the employee should have an MRI examination. When he went to have the MRI exam, he was in so much pain he could not lay down long enough to take the examination. It was then rescheduled and Dr. Hill gave him a shot immediately before going for the MRI exam. The result of the test was positive and Dr. Hill referred the employee to Dr. Robert E. Finelli, a neurosurgeon. Dr. Finelli saw him for the first time during May 21 and told him he had a serious injury which would require two surgical procedures. The employee then notified his employer of the doctor's diagnosis and recommendations and requested that he be allowed to file a workers' compensation claim. Advent Electric Company declined to treat the matter as a workers' compensation claim since the employee's supervisor denied being aware of the injury and also because of the elapse of time since the incident allegedly happened. Dr. Finelli operated on the employee during May 21; this suit was instituted on July 2, 21 and the employee was terminated from employment because of his physical condition on August 27, 21. During the next month of September, a second surgical procedure was performed. As to his condition at the time of the trial, he told the trial court the first surgery eliminated a great deal of his pain and the second surgery also helped his condition but he was still having a lot of problems. He stated he was still having pain in his right shoulder and his neck and he felt it was moving on to his left side; that he could not sleep well and still had some numbness down his right arm into his fingers; that sometimes his hand would "go dead". Since leaving employment with Advent Electric he said he had worked at some odd jobs here and there and was employed at the time of the trial with Precision Electric Company but his employer was not aware of his physical problems and he would have to stop working as soon as he was called on to do electrician work. 1 Advent Electric Company d/b/a Encompass Electrical Technologies of East Tennessee, Inc., was originally a party defendant but plaintiff took a voluntary nonsuit before trial after his employer filed a voluntary petition in bankruptcy. -2-
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:O. Duane Slone, Circuit Judge |
Knox County | Workers Compensation Panel | 05/25/04 | |
| Tiffany Lewis Denyer v. Peninsula Hospital
E2003-01541-WC-R3-CV
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 employer contends the trial court's award of 5 percent permanent partial disability to the arm was excessive. We disagree and affirm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, SP. J., joined. R. Kim Burnette and John A. Willis, Knoxville, Tennessee, attorneys for appellant, Peninsula Hospital. Garry Ferraris, Knoxville, Tennessee, attorney for appellee, Tiffany Lewis Denyer. MEMORANDUM OPINION I. Factual Background The employee, Tiffany Lewis Denyer, has a bachelor of science degree in nursing from St. Louis University. She was twenty-eight (28) years old at the time of trial. On February 2, 1997, she became employed as a psychiatric nurse with the employer, Peninsula Hospital. She has continued to work for the employer except for two periods of leave. The leave periods consisted of a three month period in the summer of 1998, when she worked at a summer camp for disabled youth, and for about six months in 2, when she worked as an occupational health nurse for Blount Memorial Hospital. After each leave she returned to work for the employer on a "PRN" or as needed basis, which provided that she would submit the hours she wanted to work and the employer would schedule her for work, if available. She continued to work in that capacity. When she returned to work for the employer after her second leave, she began to experience pain, cramping, numbness, tingling, decreased grip strength and fine motor skills in her right arm, which is her dominant arm. She also received a sprain from a restraint, which she reported to the employer. The employer provided her with a panel of three doctors, from which she chose Dr. C. Sanford Carlson, who she saw on May 9, 2. He treated her without success with steroid injections, splinting, anti-inflammatories and heat. On October 27, 2, Dr. Carlson performed right carpal tunnel surgery, releasing the median nerve which was plastered to the underside of the transverse carpal ligament. The employee returned to work on December 4, 2, and began to experience pain and swelling. She returned to Dr. Carlson on December 6, 2, and was taken off from work for a week and was assigned writing restrictions. Dr. Carlson concluded she reached maximum medical improvement on April 25, 21, and assigned her a permanent impairment of 5 percent to the right upper extremity based on the AMA Guidelines. Even though she continued to experience pain and cramping, Dr. Carlson placed her on no restrictions after the next two or three months, because carpal tunnel is a self-limited condition when released. He said his "usual admonition would be to do the best you can to get by, rest the hand, stretch the hand, modify technique." Dr. Carlson saw her the last time on August 13, 22, when he recommended she continue to work and decrease her writing requirements for the next four to five weeks. At this time he suggested she obtain a second opinion from another doctor. She went to Dr. E. B. Burns on February 21, and March 11, 23. Dr. Burns was in agreement with Dr. Carlson's treatment and recommended that she should tolerate the symptoms or change jobs. She has continued to work for the employer, although she continues to have problems writing on the patients' charts, and performing such nursing duties as drawing blood. She has requested and been assigned to the medicine room because it required less writing. The medicine room is a position which is not sought after by other nurses. She has purchased a typewriter, which she can use at times, to reduce the writing requirements. Since the hospital is a psychiatric locked facility she has had to learn to open the doors with her left arm and hand and to open the medicine bottles with a different technique. The employee describes her current symptoms relating to her arm, wrist, and hand, as follows: -2-
Authoring Judge: H. David Cate, Sp. J.
Originating Judge:D. Kelly Thomas, Jr., Judge |
Knox County | Workers Compensation Panel | 05/25/04 | |
| Patricia M. Bryant v. Baptist Health System Home Care of
E2003-00432-WC-R3-CV
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 awarded the employee 22.5 percent permanent partial disability. The employer contends the award was excessive and the trial court was in error in dismissing its counterclaim seeking expenses and penalties under the Workers' Compensation Fraud Act as the employee testified falsely in a discovery deposition. Judgment does not dispose of the counterclaim and is merely interlocutory and not subject to interim appeal. Appeal dismissed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Appeal Dismissed and Case Remanded ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Reuben N. Pelot IV, Knoxville, Tennessee, for the appellant, Baptist Health System Home Care of East Tennessee. J. Anthony Farmer, Knoxville, Tennessee, for the appellee, Patricia M. Bryant. MEMORANDUM OPINION The employer, Baptist Health System Home Care of East Tennessee, has appealed from the trial court's action in awarding the employee, Patricia M. Bryant, 22.5 percent permanent partial disability and also in dismissing its counterclaim where the hospital sought expenses, damages and penalties pursuant to the provisions of the Workers' Compensation Fraud Act, Tenn. Code Ann. _ 56-47-11, et. seq. The basis of the counterclaim is the undisputed evidence the employee testified falsely during the course of a discovery deposition about whether she had worked after leaving the hospital's employment. While the record on appeal is sufficient to review the trial court's action concerning the 22.5 percent award of permanent disability, we are unable to reach the issue with regard to the counterclaim. The record certified to this Court does not contain any order or final judgment stating or directing that the counterclaim was dismissed. We have searched the record several times in the hope of finding an order reflecting this action and the trial court's reasoning why the counterclaim was dismissed. Such document is not present in the technical record. The final judgment recites the case came on to be heard on the "Complaint, responsive pleadings, counter- claim," etc., but the judgment then only adjudicates the claim for workers' compensation benefits and does not contain any language disposing of the counterclaim. When an appellant or any party seeks review of issues before an appellate court, the party must prepare a record which conveys a fair and complete account of what transpired in the trial court. If the record is incomplete, the appellate court is precluded from considering the issue raised. In re Adoption of E.N.R., 42 S.W.3d 26 (Tenn. 21); Word v. Word, 937 S.W.2d 931 (Tenn. Ct. App. 1996). Under the state of the record, the trial court has not disposed of all claims or issues and under Rule 54, Tenn. R. Civ. P., the judgment in the present case is merely interlocutory, subject to revision and not subject to interim appeal. Fagg v. Hutch Mfg. Co., 755 S.W.2d 446 (Tenn. 1988). While interlocutory orders may be appealed by permission of the trial and appellate courts under certain circumstances, no application has been filed pursuant to Rule 9, Tenn. R. App. P. For these reasons the appeal in the present case is hereby dismissed and the case is remanded to the trial court for further consideration. Costs of the appeal are taxed to the appellant, Baptist Health System Home Care of East Tennessee. ___________________________________ ROGER E. THAYER, SPECIAL JUDGE -2-
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:Harold Wimberly, Judge |
Knox County | Workers Compensation Panel | 05/25/04 | |
| Vulcan Materials Company v. Christopher Dale Watson
M2003-00975-WC-R3-CV
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 claims that the trial court erred (1) in finding work-related disability from aggravation of a back problem, (2) in denying reimbursement of overpayment of temporary total disability benefits by the Second Injury Fund, and (3) in ordering the employer to pay the employee's attorney's fees. We affirm in part and reverse in part. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Davidson County Chancery Court is affirmed in part and reversed in part. HOWELL N. PEOPLES, SP. J., in which FRANK F. DROWOTA, III, CHIEF JUSTICE., and JOHN A. TURNBULL, SP. J. joined. D. Brett Burrow, Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for the Appellant Vulcan Materials Company. Jay R. Slobey, Blackburn & McCune, Nashville, Tennessee, for Christopher Dale Watson. 1 MEMORANDUM OPINION Facts On October 29, 1999, Vulcan Materials Company ("Vulcan") filed a complaint seeking a determination that Christopher Dale Watson was not entitled to workers' compensation benefits for an alleged injury on January 27, 1999. Mr. Watson counter-claimed, alleging a disabling injury to his back in the course and scope of his employment. On December 1, 1999, a Workers' Compensation Specialist in the Tennessee Department of Labor issued an order directing Vulcan to provide medical treatment to Mr. Watson and to pay: Temporary Total Disability benefits for periods of time for which there is medical documentation of TTD disability. The continuation of payment of temporary total disability and medical benefits shall not be terminated by the Employer/Carrier unless an Order Terminating Benefits is issued by a Workers' Compensation Specialist or such benefits are terminated by a court of proper jurisdiction. Vulcan paid temporary total disability benefits to Mr. Watson as ordered until January 4, 22, when, pursuant to a Motion to Discontinue Temporary Total Disability Benefits filed December 21, 21, the trial court ordered that such payments be immediately discontinued. Following a trial on December 2, 22, the trial court issued a bench opinion in which it found that (1) Mr. Watson was only entitled to temporary total disability benefits for the time periods of February 9, 1999 through April 15, 1999 and February 2, 2 through March 21, 2, (2) since the employer had paid temporary total disability benefits from October 1, 1999 through January 4, 22, Vulcan should recover the overpayment from the Second Injury Fund pursuant to Tenn. Code Ann. _ 5-6-238(b), (3) Mr. Watson was entitled to 22 percent permanent partial disability to the body as a whole, and (4) Mr. Watson's attorney should be awarded a fee of 2 percent. A judgment reflecting the findings of the trial court was entered. Vulcan filed a motion to alter or amend the final judgment to allow an offset because the permanent partial disability award of $29,415.4 was less than the overpayment of temporary total disability in the amount of $43,736.73. The trial court granted the offset and then ordered the Second Injury Fund to reimburse Vulcan for the overpayment. The Second Injury Fund filed a motion stating that it was not a party to the suit and asked to be heard on the matter of the reimbursement. On February 21, 23, the trial court found that its order granting Vulcan's request for reimbursement of the overpayment of temporary total disability benefits by the Second Injury Fund was not permitted under the statutes because the employee's injury was found to be "compensable." The trial court found that Vulcan was entitled to credit for the overpayment of temporary total benefits and that Mr. Watson was entitled to no additional payment for permanent partial disability. The trial court ordered Vulcan to pay $5,883. (2 percent of the 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Ii Carol Mccoy, Chancellor |
Davidson County | Workers Compensation Panel | 05/19/04 | |
| Vulcan Materials Company v. Christopher Dale Watson
M2003-00975-WC-R3-CV
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 claims that the trial court erred (1) in finding work-related disability from aggravation of a back problem, (2) in denying reimbursement of overpayment of temporary total disability benefits by the Second Injury Fund, and (3) in ordering the employer to pay the employee's attorney's fees. We affirm in part and reverse in part. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Davidson County Chancery Court is affirmed in part and reversed in part. HOWELL N. PEOPLES, SP. J., in which FRANK F. DROWOTA, III, CHIEF JUSTICE., and JOHN A. TURNBULL, SP. J. joined. D. Brett Burrow, Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for the Appellant Vulcan Materials Company. Jay R. Slobey, Blackburn & McCune, Nashville, Tennessee, for Christopher Dale Watson. 1 MEMORANDUM OPINION Facts On October 29, 1999, Vulcan Materials Company ("Vulcan") filed a complaint seeking a determination that Christopher Dale Watson was not entitled to workers' compensation benefits for an alleged injury on January 27, 1999. Mr. Watson counter-claimed, alleging a disabling injury to his back in the course and scope of his employment. On December 1, 1999, a Workers' Compensation Specialist in the Tennessee Department of Labor issued an order directing Vulcan to provide medical treatment to Mr. Watson and to pay: Temporary Total Disability benefits for periods of time for which there is medical documentation of TTD disability. The continuation of payment of temporary total disability and medical benefits shall not be terminated by the Employer/Carrier unless an Order Terminating Benefits is issued by a Workers' Compensation Specialist or such benefits are terminated by a court of proper jurisdiction. Vulcan paid temporary total disability benefits to Mr. Watson as ordered until January 4, 22, when, pursuant to a Motion to Discontinue Temporary Total Disability Benefits filed December 21, 21, the trial court ordered that such payments be immediately discontinued. Following a trial on December 2, 22, the trial court issued a bench opinion in which it found that (1) Mr. Watson was only entitled to temporary total disability benefits for the time periods of February 9, 1999 through April 15, 1999 and February 2, 2 through March 21, 2, (2) since the employer had paid temporary total disability benefits from October 1, 1999 through January 4, 22, Vulcan should recover the overpayment from the Second Injury Fund pursuant to Tenn. Code Ann. _ 5-6-238(b), (3) Mr. Watson was entitled to 22 percent permanent partial disability to the body as a whole, and (4) Mr. Watson's attorney should be awarded a fee of 2 percent. A judgment reflecting the findings of the trial court was entered. Vulcan filed a motion to alter or amend the final judgment to allow an offset because the permanent partial disability award of $29,415.4 was less than the overpayment of temporary total disability in the amount of $43,736.73. The trial court granted the offset and then ordered the Second Injury Fund to reimburse Vulcan for the overpayment. The Second Injury Fund filed a motion stating that it was not a party to the suit and asked to be heard on the matter of the reimbursement. On February 21, 23, the trial court found that its order granting Vulcan's request for reimbursement of the overpayment of temporary total disability benefits by the Second Injury Fund was not permitted under the statutes because the employee's injury was found to be "compensable." The trial court found that Vulcan was entitled to credit for the overpayment of temporary total benefits and that Mr. Watson was entitled to no additional payment for permanent partial disability. The trial court ordered Vulcan to pay $5,883. (2 percent of the 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Ii Carol Mccoy, Chancellor |
Davidson County | Workers Compensation Panel | 05/19/04 | |
| Roger B. Ammons v. John Bouchard & Sons Co.; and
M2003-00940-SC-WCM-CV
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 claims that the trial court erred (1) in the amount of permanent partial disability awarded, (2) in determining the date permanent benefits commenced, (3) in awarding discretionary costs, and (4) in ordering the employer to pay the employee's attorney's fees. As modified, we affirm the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Davidson County Circuit Court is affirmed as modified. HOWELL N. PEOPLES, SP. J., in which FRANK F. DROWOTA, III, CHIEF JUSTICE., and JOHN A. TURNBULL, SP. J. joined. Andreas W. Smith, Allen, Kopet & Associates, PLLC, Chattanooga, Tennessee, for the Appellant John Bouchard Sons Co., and Associated Builders and Contractors of Tennessee Workers Compensation Self Insurance Fund. Daniel L. Clayton, Kinnard, Clayton & Beveridge, Nashville, Tennessee, for the Appellee Roger B. Ammons. 1 MEMORANDUM OPINION Facts Roger Ammons, a 46-year-old high school graduate, started working at age 17 as a plumber, the only work he has ever done. In 1983, he went to work for John Bouchard & Sons Co. ("Bouchard") as a journeyman plumber. The position required him to engage in heavy manual labor. On December 7, 1999, he sustained injuries to his back and left shoulder in a work-related motor vehicle accident while riding as a passenger in a plumbing truck. The driver of the truck, a 22-year-old co-worker, was killed in the accident. Dr. Daniel Burrus, an orthopedic surgeon, who treated Mr. Ammons, testified by deposition that Mr. Ammons had a 15 percent impairment to the body as a whole for his physical injuries based upon the A.M.A. Guides to the Evaluation of Permanent Impairment, 5th ed. Dr. David Gaw, an orthopedic surgeon, saw Mr. Ammons for evaluation and testified, by deposition, that he had a 24 percent impairment to the whole person for the physical injuries based upon the Guides, 5th Ed. He also testified that Mr. Ammons would have a 15 percent impairment based on the Guides, 4th Ed., which was in effect at the time Mr. Ammons reached maximum medical improvement. Dr. Gaw gave a second deposition in which he testified that Mr. Ammons would have a 25 percent physical impairment under the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. (Tenn. Code Ann. _ 5-6-241 permits the use of either publication without expressing a preference.) In addition to the physical limitations, Dr. John J. Griffin, a psychiatrist, diagnosed Mr. Ammons with post-traumatic stress disorder and dysthymic disorder (depression) with symptoms of anxiety as a result of the accident. He testified, by deposition that Mr. Ammons has Class III or moderate impairment under the Guides, 5th Ed. Dr. Griffin characterized Class III moderate impairment as compatible with some but not all-useful functioning. What I would say in terms of his _ his real life is that psychiatrically he can do many of the things that he needs to, but not all of them. He wears out easier from an emotionally, not just the physical standpoint. He doesn't have the patience that he did before because he gets depressed. He can't persist at some things as well as he could before. Because he's anxious, he's likely to avoid or withdraw from certain kinds of social activities that he would have eagerly looked forward to before and would have insisted on doing. Nicholas Sieveking, Ph.D., clinical psychologist, testified in open court as a vocational expert that Mr. Ammons was "86 percent occupationally disabled, 92 percent occupationally disabled in his own category, and 1 percent occupationally disabled from his job." Both Mr. Ammons and his wife, Donna Ammons also testified that the accident had severely impacted his activities at home and at work. The trial court determined that Mr. Ammons sustained a permanent partial disability of 92 percent to the body as a whole. 2 ****** Document Outline ****** * Page_1 o a1 o a3 o Text5 o a4 o a5 o a6 o a7 o a8 o Text24 o Text12 o a_Opinion_Summary o a1 o a11 o a12 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Carol Solomon, Circuit Judge |
Davidson County | Workers Compensation Panel | 05/11/04 | |
| Emily P. Bowen v. Frito-Lay, Inc.,
M2002-02552-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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 employee in this case sustained 2 separate work-related injuries and one back injury at home. She is now totally disabled and draws Social Security Disability benefits. The employee argues that the trial court erred: (1) in finding that the employee did not sustain a compensable back injury in the course and scope of her employment in March 1999; and (2) in dismissing her complaint against the Second Injury Fund. Additionally, the employer contends that the trial court erred when it held that the employee's February 1998 back injury that occurred while working for this employer was not barred by the statute of limitations. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Emily P. Bowen. Edward A. Hadley, Nashville, Tennessee, for the appellees, Frito-Lay, Inc., and RSKCo. Paul G. Summers, Attorney General; E. Blaine Sprouse, Assistant Attorney General; James G. Davis, for the appellee James Farmer, Director of Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund. MEMORANDUM OPINION Ms. Emily P. Bowen was 5 years old at the time of trial, has a seventh-grade education, and has no special skills or training. She worked as a packer for Frito-Lay, Inc., from June 3, 198, until May 17, 1999. On February 4, 1998, Ms. Bowen was working on a wrapper line when she picked up a 35 pound roll of cellophane and immediately felt sharp pain in her back. Dr. Gregory Lanford, a neurosurgeon and her long-time treating physician, took her off work and treated her conservatively with medication and physical therapy. A myelogram revealed nerve root impingement and on May 19, 1998, Dr. Lanford performed a lumbar diskectomy and nerve root decompression at L5-S1. Dr. Lanford released her to return to light duty work in July of 1998. In November of 1998, he released Ms. Bowen to return to work full-time at Frito-Lay with a 25 pound lifting restriction. He assigned a 1% additional impairment rating for the February 1998 injury.1 Ms. Bowen continued taking medication. At her January 14, 1999 appointment, Dr. Lanford scheduled a follow-up appointment for April 15, 1999. In March of 1999, Ms. Bowen was on a temporary assignment packing cookies in tins and placing trays of cookie tins weighing approximately 18 pounds on a bakers' rack. She started having lower back and leg pain, right arm and shoulder pain caused by "leaning over the tray and reaching over the belt in that awkward [bent-over] position for so long." She reported this injury to her employer but continued to work. On April 15, 1999, Ms. Bowen went to see Dr. Lanford for her previously scheduled follow- up appointment for the 1998 surgery. His notes indicate that she had a new problem and "had re- injured her back" while lifting cookie trays at work. Dr. Lanford found diminished range of motion but x-rays were "unrevealing." He diagnosed low back strain but stated her main complaint was the shoulder pain and that she did not complain of radicular leg pain at this point. He prescribed physical therapy and scheduled a follow-up appointment for May 2, 1999. The physical therapist prescribed a TENS unit, heat therapy, and a back support for Ms. Bowen to wear while at work. Physical therapy was provided at the plant and Ms. Bowen did not miss any work because of this injury. 1While working for Frito-Lay, Ms. Bowen had a series of injuries for which she underwent 2 lumbar surgeries and 1 cervical spine surgery. In 1997 M s. Bowen and Frito-Lay reached a settlement agreement for these injuries. The settlement agreement does not assign percentages of disability but cites a physician's impairment rating of 1% for the lumbar spine and 15% for the cervical spine. M s. Bowen continued to work for Frito-Lay after the 1997 settlement and none of these earlier injuries is the subject of this litigation. -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Robert L. Jones, Chancellor |
Giles County | Workers Compensation Panel | 04/30/04 |