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| Jody Collins v. Lear Seating Corporation,
E2001-00223-WC-R3-CV
The trial court found the plaintiff had suffered a work-related injury and awarded 7 percent permanent partial disability to the right arm. We reverse the judgment of the trial court and dismiss this case.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Ben W. Hooper, Ii, Judge |
Knox County | Workers Compensation Panel | 03/04/02 | |
| Kay E. Duncan v. Modine Manufacturing Co., Inc. and Jim
E2000-02995-WC-R3-CV
The trial court found that in the current work-related injury the plaintiff sustained an 8 percent permanent partial disability to the body as a whole and a 15 percent permanent partial disability to the body as a whole as a result of an aggravation of her pre-existing depression. The plaintiff had previously sustained a work-related carpal tunnel injury and received an award of 35 percent for the injury, which was stipulated to convert to 17.5 percent. The trial court found the plaintiff's current 95 percent disability coupled with her pre-existing right arm condition rendered her permanently and totally disabled in accordance with Tennessee Code Annotated _ 5-6-27(4)(A)(i). The trial court assessed 82.5 percent of the award to the defendant employer and the balance to the Second Injury Fund. We affirm the judgment of the trial court and remand the case to the trial court for entry of such orders as are necessary to carry out the judgment.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Judge |
Knox County | Workers Compensation Panel | 02/28/02 | |
| Jarrett W Illiam Utley v. Bridgestone/Firestone
M2001-00090-WC-R3-CV
The employee appeals and contends the trial court erred (1) in finding his claim for a work-related repetitive injury was barred by the statute of limitations, and (2) in concluding that his injury on September 2, 1997 did not result in any permanent disability. We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Tom E. Gray, Chancellor |
Sumner County | Workers Compensation Panel | 02/20/02 | |
| Angela Lem Mons v. P & P Enterpr Ises, Llc
M2001-00616-WC-R3-CV
The employee appeals the finding of the trial court that she failed to carry her burden of proof that her injuries arose out of and in the course of her employment. We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:James E. Walton, Judge |
Robertson County | Workers Compensation Panel | 02/20/02 | |
| Betty Louise Moss v. Findlay Industries, Inc.
M2000-02632-WC-R3-CV
The trial court awarded benefits for vocational impairment of 55 percent to each of the plaintiff's arms. The defendant insists that the award is excessive, because the anatomical rating was only 1 percent, as a result of carpal tunnel release. The judgment is affirmed.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Charles D. Haston, Judge |
Warren County | Workers Compensation Panel | 02/15/02 | |
| Clint Lowe v. Wal-Mart Stores, Inc.
M2001-00513-WC-R3-CV
After being informed by his employer that he could see no more physicians, the plaintiff nevertheless sought additional treatment for a neck injury which resulted in a surgical correction. The trial judgment ordered these unauthorized expenses to be paid by the employer. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 02/15/02 | |
| Brenda Braden, v. Modine Manufacturing Company, Inc .
2001-00219-WC-R3-CV
this workers' compensation case is whether the evidence supports the finding of the trial court that the plaintiff is forty percent disabled where the treating physician found no impairment, where the independent medical examiner found ten percent impairment to each upper extremity and where the plaintiff testified to continuous pain necessitating medication following surgical releases of carpal tunnel syndrome. Based upon a review of the record, the briefs of the parties and the argument of counsel, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed W. NEIL THOMAS, III, Special Judge, in which William M. Barker, Justice, and John K. Byers, Judge, joined. Michael J. Mollenhour, Knoxville, for the appellant, Modine Manufacturing Company, Inc. Roger L. Ridenour, Clinton, for the appellee, Brenda Braden MEMORANDUM OPINION Modine Manufacturing Company, Inc. ("Modine") appeals from the judgment of the court below finding that each upper extremity of the plaintiff, Brenda L. Braden ("Braden"), is forty percent disabled as a result of carpel tunnel syndrome after surgical procedures to release the carpel tunnel syndrom. For the following reasons, we affirm the judgment of the trial court. This action was commenced by Braden against Modine on August 19, 1999. The complaint alleges that Braden suffered bilateral carpel tunnel syndrome as a result of her employment with Modine. Modine filed an answer on September 2, 1999, generally denying the allegations of the complaint. The lawsuit was tried on December 1, 2, and judgment was entered January 8, 21. Notice of Appeal was filed January 29, 21. The evidence which was received consisted of the testimony of the plaintiff; her treating physician, Dr. Joseph DeFiore, Jr.; her supervisor, Dave Deganie; and an independent medical examiner, Dr. Cletus J. Mahon, Jr. Dr. Mahon opined that Braden has residual damage to her median nerve and has ten percent permanent physical impairment to each upper extremity after surgical procedures which released each carpel tunnel syndrome. Dr. DeFiore opined that Braden has no impairment and that she was released by him on June 18, 1999. Mr. Deganie testified that he has supervised Braden for four years and that she has not complained of pain or numbness in her hands. Braden testified that she is 58 years old and has worked for Modine for 25 years. She performs TIG welding for Modine and generally welds 6-7 units per shift with at least four welds per unit. When changing a weld type on October 15, 1998, she experienced pain in her wrists. She saw Dr. DeFiore who performed surgery on her wrists and released her with restrictions on April 12, 1999. Although she received physical therapy from Healthsouth, she continues to take pain medications "to get through the day and to sleep at night." Finally, she testified that her life consists of going to work and then going home. At trial the parties stipulated that the "plaintiff was an employee of the defendant in October, 1998, when she developed bilateral carpel tunnel syndrome." At the conclusion of the trial the trial court entered judgment in favor of the plaintiff for forty percent permanent partial disability to each arm and awarded Braden $36,28.8. The trial court further awarded Braden discretionary expenses in the amount of $954.35. The latter award was not the subject of the appeal. The review of the findings of the trial court is de novo with a presumption of the correctness of the decision unless a preponderance of the evidence is contrary to those findings. Spencer v. Towson Moving & Storage, Inc., 922 S.W. 2d 58 (Tenn. 1996). In addition, this Court is required make an independent determination as to the preponderance of the evidence. Galloway v. Memphis Drum Service, 822 S.W. 2d 584 (Tenn. 1991). As stated by the Court in Galloway, supra at 586, this Court "is not bound by a trial court's factual findings but instead conduct an independent examination to determine where the preponderance of the evidence lies.
Authoring Judge: W. Neil Thomas, III, Special Judge
Originating Judge:James B. Scott, Circuit Judge |
Knox County | Workers Compensation Panel | 02/07/02 | |
| Mary Jane Campbell v. The Travelers Insurance Company
E2000-01894-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 employee appeals the trial court dismissal of her claims that a chemical exposure at work caused her disability. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Dale C. Workman, Circuit judge |
Campbell County | Workers Compensation Panel | 02/07/02 | |
| Joyce Ramsey v. City of Dyersburg,
W2001-01059-SC-WCM-CV
In this appeal, the appellant contends the evidence preponderates against the trial court's finding that the claimant's husband's fatal heart attack arose out of and in the course of employment. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Dyer County | Workers Compensation Panel | 02/04/02 | |
| Bonner Mccluskey v. F&M Incorporated,
2001-00468-SC-WCM-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. In this appeal, the appellant insists (1) the trial court erred in dismissing his claim for permanent disability benefits based on a finding that the proof of permanency was insufficient, and (2) the trial court erred in disallowing the appellant's post-trial application for relief. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and L. T. LAFFERTY, SR. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Bonner McCluskey R. Scott Vincent and Ronald L. Harper, Memphis, Tennessee, for the appellees, F&M Incorporated d/b/a Domino's Pizza, Inc., and Domino's Pizza, Inc. MEMORANDUM OPINION On or about January 13, 1999, the employee or claimant, Bonner McCluskey, was injured at work when a box of pepperoni fell from a freezer shelf, striking him in the left shoulder and neck. He reported the injury to the employer, Domino's, and was provided medical benefits. He lost a few days of work, then returned. The employee was treated for his injuries by Dr. Dawoud, who prescribed physical therapy and released the employee to full duty without restrictions. The only issue presented for trial was the extent of the employee's permanent vocational disability, if any. His attorney referred the claimant to Dr. Tewfik E. Rizk, whom he saw a number of times. Although diagnostic testing revealed no evidence of injury, Dr. Rizk diagnosed muscular fibrosis and thoracic outlet delay, provided conservative care and estimated the claimant's permanent whole body impairment to be 25 percent. The employer's insurer referred the claimant to Dr. John D. Brophy, who reviewed Dr. Rizk's records, diagnosed a soft tissue injury, consulted with another board certified specialist and examined the claimant. Dr. Brophy concluded that Dr. Rizk's diagnoses were erroneous. Dr. Brophy opined at trial that the claimant did not have any permanent impairment. Both doctors testified by deposition. The claimant testified that he continues to have disabling pain. He is currently working for another employer, earning more than $4,. per year as a service manager. The trial court rejected the opinions of Dr. Rizk in favor of those of Dr. Brophy and dismissed the claim for insufficient evidence of permanency. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellant first contends the trial court erred in accepting the opinions of Dr. Brophy, instead of those of Dr. Rizk, because Dr. Rizk was a treating physician. Trial courts are not required to accept the opinion of a treating physician over any other conflicting expert medical testimony. When the medical testimony differs, the trial judge must choose which view to believe. In doing so, he is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). From our independent examination of the record, we are unable to find the preponderance of the evidence to be otherwise than as found by the trial court. The first issue is accordingly resolved in favor of the appellee. The appellant next contends that the trial court erred in disallowing his post- trial motion for -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:George Brown, Judge |
Shelby County | Workers Compensation Panel | 02/01/02 | |
| Michael Lane v. Olsten Staffing Services, Inc.,
E2001-00380-WC-R3-CV
The trial court found the employee sustained a compensable injury but concluded there was no permanent disability. Also, the court declined to allow certain medical expenses ordered by an independent medical examiner. Judgment of the trial court is affirmed.
Authoring Judge: Thayer, Sp. J.
Originating Judge:Thomas J. Seeley, Jr., Chancellor |
Knox County | Workers Compensation Panel | 01/31/02 | |
| Billy Joe Clubbs v. Cresent Manufacturing Co.,
M2001-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. In this appeal, the injured employee insists the trial court erred in dismissing his claim for benefits for failure to give timely written notice of his injury. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for further consideration. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the Circuit Court Reversed. Cause Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary A. Parker, Nashville, Tennessee, for the appellant, Bobby Joe Clubbs D. Andrew Saulters, Nashville, Tennessee, for the appellees, Cresent Manufacturing Company and CNA Insurance Company MEMORANDUM OPINION The employee or claimant, Clubbs, is a supervisor for the employer, Cresent, and familiar with the procedure for reporting injuries. In January or February of 1999, he felt "an intense jolt" when a wrench he was using slipped. The claimant did not report the occurrence to the employer. He testified that it is customary, though not encouraged, at Cresent not to make written report of a minor injury when the employee believes the injury will resolve itself quickly. His pain quickly subsided and he finished his shift and continued working without pain. At the time, the claimant did not realize he had suffered an injury. Seven to ten days later, he began experiencing severe headaches. However, he had suffered headaches in the past and was not alarmed by it. He began visiting Dr. Sid King, whom he had seen from time to time for other headaches. When conservative care did not relieve the headaches and tests revealed a spur, Dr. King referred the claimant to a neurologist, Dr. Mary Ellen Clinton, whom the claimant first saw on March 17, 1999. On the same day, Dr. Clinton advised him that she thought the condition was the result of the wrench slipping episode at work. The claimant retained an attorney, who, on April 2, 1999, reported the injury to the employer by letter. Dr. Ray Hester, to whom the claimant was referred by Dr. Clinton, diagnosed a herniated cervical disc, which he repaired surgically. Dr. Hester opined at trial that the injury was work related and assigned a permanent impairment rating. The claimant was totally disabled to work for a period of time and has incurred medical expenses. Following a trial on the merits, the trial court found the claimant, without a reasonable excuse, had failed to give timely notice of his injury. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. Marshall Construction Co. v. Russell, 163 -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. L. Rogers, Judge |
Sumner County | Workers Compensation Panel | 01/25/02 | |
| Kamel Al-Abes v. Friction Master, L.P.,
W2000-02015-WC-R3-CV
Plaintiff presents three appellate issues: (1) Whether the findings of the trial court were contrary to the preponderance of the evidence; (2) whether the trial court erred in denying Plaintiff future medical care; and (3) whether the trial court erred in denying Plaintiff discretionary costs. After a review of the entire record, the Panel concludes that the judgment of the trial court on the award of fifteen percent (15%) permanent disability is affirmed. However, we reverse the trial court's judgment's denial of future medical care and denial of certain discretionary costs.
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:James S. Russell, Judge |
Shelby County | Workers Compensation Panel | 01/23/02 | |
| Khyva Phipps v. Insurance Company of The State of
M2000-01962-WC-R3-CV
In this appeal, the appellants, Insurance Company of the State of Pennsylvania and Carrier Corporation insist that: 1) the trial court erred in excluding the medical records of Dr. Robert Cannon, M.D. documenting the employee's treatment for injuries sustained in a previous car accident, which was offered into evidence by appellant through the deposition of the physician's custodian of records; 2) the evidence preponderates against the trial court's finding that the plaintiff suffered a compensable injury to her back under the Workers' Compensation Act; and 3) the trial court erred in its application of the burden of proof as provided by the Workers' Compensation Act. After a complete review of the entire record, the briefs of the parties, and the applicable law, We affirm the judgment of the trial court.
Authoring Judge: Weatherford,.Sr. J.
Originating Judge:Larry Ross, General Sessions Judge |
Warren County | Workers Compensation Panel | 01/22/02 | |
| Patricia Daisy Coleman v. Tower Automotive,
W2001-00284-WC-R3-CV
In this appeal, the employer-appellant contends the award of permanent partial disability benefits based on 35 percent to the body as a whole is excessive. As discussed below, the panel concludes the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Julian P. Guinn, Judge |
Carroll County | Workers Compensation Panel | 01/22/02 | |
| Beatrice Scott Nall v. E.I. Dupont De Nemours and
M2001-01176-WC-R3-CV
The issue in this case is whether the plaintiff is entitled to interest on an award of benefits. The judgment did not comply with Rule 58 of the Tenn. R. Civ. P., and never became final, but the judgment was nevertheless satisfied. The defendant declined to pay interest on the judgment because it was not final. The trial court awarded a recovery of interest. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Allen Wallace, Judge |
Scott County | Workers Compensation Panel | 01/12/02 | |
| James Burks v. Williams Typesetting, Inc.
E2000-02532-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 trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J., and WILLIAM H. INMAN, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee for the appellant, Travelers Insurance Company. Sarah C. Hardison Reisner and James L. May, Jr., Nashville, for the appellees, Lisa Fuson, et al. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, 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). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The employee, age thirty-six at the time of trial, has a high school diploma and some college credits. She served in the Army for six years as a health inspector before being honorably discharged. During her Army service, she learned basic computer skills in the Lotus and WordPerfect programs. She was employed by the parties' insured, Dunlap Industries, from November of 1993 until January of 1999. She sustained a gradually occurring injury_carpal tunnel syndrome_while employed with Dunlap Industries. During the time relevant to this case, Dunlap Industries was insured by two insurers. The defendant provided workers' compensation coverage to the employer from September 11, 1996 until September 11, 1997. The plaintiff provided coverage beginning September 12, 1997. The plaintiff's injury resulted in the filing of three claims and three First Report of Injury forms before surgery was performed on March 26, 1998. After both the first claim, filed on October 23, 1996, and second claim, filed on May 1, 1997, the employee was released by her treating physician and returned to work. The final claim was filed on September 5, 1997. The defendant insurer authorized surgery after the final claim and then denied coverage on April 23, 1998. The defendant insurer claims the date of injury was the last day the employee was able to work, that date being March 24, 1998_the date of surgery, which was outside of the workers' compensation policy issued by the company to cover claims for work-related injuries. The trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. Medical Evidence Dr. John P. Nash, an orthopedic surgeon, testified by deposition. Dr. Nash first saw the employee on December 1, 1996, approximately six weeks after she began having symptoms. She complained of pain in her left elbow with occasional tingling in her small finger that began after she lifted a box at work. Dr. Nash diagnosed left lateral epicondylitis or "tennis elbow." He returned her to work on January31, 1997, after her symptoms improved. The employee was next seen in June of 1997 for additional elbow complaints. The employee was treated conservatively on several occasions for what Dr. Nash referred to as "flare ups." According to Dr. Nash, surgery was -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Jeffery Franklin Stewart, Chancellor |
Knox County | Workers Compensation Panel | 01/08/02 | |
| Harrison Driver v. Bridgestone/Firestone, Inc.
M2000-02944-WC-R3-CV
The employer argues that the employee's pre-existing condition was not advanced, progressed, or anatomically changed during his employment at Bridgestone. In the face of conflicting medical testimony, the trial court found in favor of the employee, awarding $13,766 for a 7% permanent disability to his body as a whole. Relying on the employee's own medical testimony as well as an opinion of one of the testifying physicians, concluding that the employee's injury more probably than not was a result of his employment, the Panel affirms the trial court's finding that the employee suffered a compensable injury while at work.
Authoring Judge: Gayden, Sp. J.
Originating Judge:Hon. Don R. Ash, Judge |
Rutherford County | Workers Compensation Panel | 12/27/01 | |
| Nathaniel Hampton v. Connecticut Indemnity Company
W2000-02057-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. In this appeal, the employee insists the evidence preponderates against the trial court's finding that he did not suffer a permanent injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Nathaniel Hampton Jeffery G. Foster, Jackson, Tennessee, for the appellee, Connecticut Indemnity Company MEMORANDUM OPINION On or about June 7, 1999, the employee or claimant, Hampton, strained his knee at work. He reported the accident to his employer, who provided medical care, including diagnostic testing and physical therapy. A Magnetic Resonance Imaging scan revealed no abnormality. Dr. James Varner viewed the test report and examined the claimant, but found no evidence of a permanent injury. Dr. Joseph Boals examined the claimant and found minimal tenderness over the injured knee and guessed the claimant's permanent impairment at 5 percent, based on subjective complaints. Accepting the medical testimony of Dr. Varner, the trial court found that the evidence failed to establish the probability of a permanent injury. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The claimant seeks an "in-depth review" of the evidence to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:John R. Mccarroll, Jr., Judge |
Shelby County | Workers Compensation Panel | 12/21/01 | |
| Diana Noles v. Ameristeel Corporation
W2001-00406-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for a detailed analysis of the evidence in the trial record. The trial court in this cause found that Plaintiff sustained a thirty-five percent (35%) permanent partial disability to the right and left arm. Defendant, Ameristeel Corporation, appeals and asserts that the trial court's award of thirty-five percent (35%) permanent partial disability to each arm is excessive and not supported by a preponderance of the evidence. From our review of the entire record and applicable law, the judgment of the trial court is affirmed as modified. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed as Modified. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, JR., SP. J., and JANICE M. HOLDER, J., joined. John D. Burleson and L. Beth Williams, Jackson, Tennessee, for the appellant, Ameristeel Corporation. Paul Todd Nicks, Jackson, Tennessee, for the appellee, Diana Noles. MEMORANDUM OPINION Diana Noles (Parker), age 43, a high school graduate, testified that she has a varied employment background since high school. Plaintiff has worked as an office employee as well as performing manual labor in factories. Prior to 1993, she lived in Addison, Illinois, and moved to Tennessee that year with her ex-husband.1 Prior to her employment with MRT and Defendant, who 1The Plaintiff was a single mother up and until her marriage three months prior to trial. took over MRT, Plaintiff worked for Johnson Controls in Lexington, Tennessee, testing seat tracks for cars. When Plaintiff went to work for MRT, she was a "B" operator. This work consisted of shoveling, squeegeeing off the floor, pulling samples, and driving a forklift and front end loader. She became an "A" operator in the control room, but when Defendant took over MRT, she was transferred back to a "B" operator. Plaintiff's primary work responsibility was to keep the seal pans clean, unload coal trucks, fill charge buckets, and shovel and hoe out the seal pans which would accumulate mud. Also, this cleaning process required the use of a three-inch vacuum hose. Twenty- five percent (25%) of her work consisted of this repetitive shoveling, hoeing and vacuuming of the seal pans. Prior to February of 1999, Plaintiff had no work-related injuries. In January 1999, she advised her supervisors that her right arm felt like dead weight and was numb. She saw her family doctor who advised her that she may have carpal tunnel and to advise her employer. The company sent her to see Dr. Kenneth Warren, who referred her to Dr. Ronald Bingham for carpal tunnel testing. As a result of the test, Dr. Warren referred Plaintiff to Dr. Claiborne Christian for carpal tunnel syndrome. Eventually, Dr. Christian performed surgery on her right arm on Friday, February 26, 1999. She returned to light duty the following Monday and remained on light duty for six weeks. During this six weeks, Plaintiff was still seeing Dr. Christian every couple of weeks until she was returned to full duty. Her shoulder pain and numbness went away after surgery. Plaintiff testified that in June 1999, she began developing numbness and pain in her left hand. The company referred her back to Dr. Christian. After seeing Dr. Christian a number of times and having another test, Dr. Christian performed surgery on her left hand. Plaintiff returned to full duty in April 2. Since both surgeries, Plaintiff testified that she has re-occurring numbness/tingling, more in the right hand than the left. The numbness has affected her work and home chores in that while performing shoveling or vacuuming, she must stop and rest. She has not complained to her supervisors, as she does not want to sound "whiny." On behalf of Defendant, Mr. Jimmy Sloop, plant superintendent, testified that Plaintiff is one of his best employees. She does a good job, does not complain and approximately twenty-five percent (25%) of her work is repetitive. He would be happy to recommend her for an "A" operator position, but there are no openings and none seem to be available in the immediate future. Mr. Sloop confirmed that Plaintiff worked a twelve-hour shift, three days a week and averaged 1.3 hours of overtime daily. MEDICAL EVIDENCE Plaintiff was seen, initially, by Dr. Warren on February 9, 1999, who referred her to Dr. Bingham for a nerve conduction test. As a result of the test indicating severe entrapment neuropathy of the median nerve in right wrist, Dr. Warren referred Plaintiff to Dr. Christian for possible carpal tunnel release. Dr. Christian, an orthopedic specialist, filed a C-32, Department of Labor Standard Form Medical Report for Industrial Injuries on October 16, 2. Utilizing the AMA Guidelines for evaluation of permanent impairment, Dr. Christian opined that Plaintiff sustained a two percent (2%) -2-
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:C. Creed Mcginley, Judge |
Carroll County | Workers Compensation Panel | 12/19/01 | |
| Michael Bruce Harris v. Magotteaux, Inc., et al
M2000-03201-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 of findings of fact and conclusions of law. The employer appeals the trial court's calculation of the workers' compensation award of permanent partial disability benefits using the employee's total medical impairment rating, as opposed to using only the medical impairment rating arising from the most recent injury. In addition, the employer's previous insurance carrier challenges the trial court's finding that it is equally liable along with the current insurance carrier for the employee's most recent injury and the employee's future medical benefits. The Panel concludes the award should be modified in part and reversed in part. We modify the trial court's judgment, finding that the employee is entitled to workers' compensation benefits solely for his most recent injury and award a 12% permanent partial disability to the body as a whole. An employee cannot combine a claim for a new injury with a claim for reconsideration of a pre-existing workers' compensation award when the employee sustains an additional injury. We reverse the trial court's judgment, finding that Home Insurance Company, the previous insurance carrier, is not liable for benefits arising from the second injury. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Modified in Part and Reversed in Part. GAYDEN, SP. J., in which DROWOTA, J., and LOSER, SP. J., joined. Joseph W. Henry, Jr., Henry, Henry & Speer, Pulaski, Tennessee, for the appellant, Magotteaux, Inc. 1 Rankin P. Bennett, Cookeville, Tennessee, for the appellee, Michael Bruce Harris William M. Billips, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for the appellee, Home Insurance Company and Home Indemnity Company MEMORANDUM OPINION The employee/appellee, Michael Bruce Harris, is a forty-year-old high school graduate, with no further schooling. He is married and has one child who is in the 12th grade. Since graduating from high school in 1978, the employee has held and performed jobs requiring a great deal of physical exertion. The employee worked at his first job at Torrington/ Fafnir from 1978 until 1988 as a material handler and equipment operator. In 1988, he started work for Magotteaux, Inc., the employer/appellant, as a field services technician. This job required the employee to drive a truck to various and distant locations throughout the country, erect equipment for the customer, and be on standby around the clock until the customer was satisfied. The employee would dismantle the machinery once the customer was finished and transport the equipment to the next location. The employee worked for the employer for 9_ years until his dismissal on January 11, 1999. Some time after the loss of his job, the employee and a friend borrowed $85, to open a retail package liquor store. The employee is presently working at this liquor store. While on the job working for the employer, the employee suffered two injuries to the same place in his back. No dispute exists as to whether the employee was on the job at the time of the injuries. Both injuries resulted in a ruptured disc on the right side at the L4/5 level of the spine and required laminectomies. The first injury occurred on June 13, 1994. Dr. Verne Allen, the neurosurgeon who performed the first laminectomy, assigned a 1% medical impairment rating in accordance with the Fourth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment. After the first injury, the employee returned to his job at the same or greater pay. He received a workers' compensation award in the amount of 25% permanent partial disability to the body as a whole. The trial court reached this number by multiplying the 1% medical impairment rating 2_ times, as allowed in Tenn. Code Ann. _ 5-6- 241(a)(1)(2). The employee suffered his second injury on March 21, 1998, on a job site in Pennsylvania. Dr. Vaughan Allen, a neurosurgeon, performed the second laminectomy and assigned an additional 2% medical impairment rating in keeping with the Fourth Edition of the AMA Guides. In his deposition, Dr. Allen agreed that the total physical impairment rating of these two laminectomies would be 12% medical impairment to the body as a whole. The employee returned to work, again at the same or greater pay. Dr. Vaughan Allen placed restrictions on the employee's physical activities; specifically, no lifting over thirty pounds on a repetitive basis, fifty pounds occasionally, no repetitive bending, and no driving a truck for two hours without getting out and moving around. Dr. Allen ordered the employee not to drive a truck in the capacity he had been doing before the second injury. The employee filed two complaints for workers' compensation following his second injury. 2
Authoring Judge: Gayden, Sp. J.
Originating Judge:Hon. Jim T. Hamilton, Judge |
Giles County | Workers Compensation Panel | 12/18/01 | |
| Daryl K. Collins v. Tower Automotive Products
W2001-00480-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 trial court found Plaintiff suffered permanent impairment and awarded Plaintiff twenty-two percent (22%) permanent partial impairment to each upper extremity. Defendant asserts that the award of twenty- two percent (22%) was excessive and not supported by the evidence. From our review of the trial record, we affirm the trial court's judgment as modified. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed as Modified. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, JR., SP. J., and JANICE M. HOLDER, J., joined. Deana C. Seymour, Jackson, TN, for the appellant, Tower Automotive Products Company, Inc., d/b/a Tower Automotive. George L. Morrison, III, Jackson, TN, for the appellee, Daryl Collins. MEMORANDUM OPINION TRIAL TESTIMONY Daryl Collins, age 39, married with two sons, has been employed at Tower Automotive Company, Inc., d/b/a Tower Automotive, hereinafter Defendant, for the past 17 years. Plaintiff's education consists of a high school diploma and an associate's degree from Jackson State Community College. Plaintiff's duties were primarily welding heavy truck parts. In 1998, Plaintiff began suffering from pain in both his right and left wrists. Plaintiff advised Defendant in January of 1999, and underwent conservative treatment. Defendant furnished him with the names of three physicians and was seen by Dr. Lewis Murphy, who referred Plaintiff to Dr. Ronald Bingham for a nerve conduction examination. Dr. Bingham referred Plaintiff to Dr. Michael Cobb when the test indicated median neuropathy at both wrists, consistent with carpal tunnel syndrome. Dr. Cobb advised Plaintiff that carpal tunnel release may be necessary for both wrists. On January 2, 2, Dr. Cobb performed carpal tunnel release on the right wrist and then on February 8, 2, carpal tunnel release was performed on Plaintiff's left wrist. Plaintiff returned to restricted duty for six weeks before Dr. Cobb released him to regular duty as a welder. Although Plaintiff returned to regular duty, he stated that his hands still hurt every day, however surgery did correct the numbness. He advised the plant nurse, Debbie Bowlin, that his hands hurt occasionally while grinding parts. At home, Plaintiff stated that he had difficulty playing (wrestling) with his eight-year-old son. Due to vibration, he cannot use a weedeater for long periods of time because of numbness. When asked about his grip strength, Plaintiff responded, "As far as grip strength, I've lost quite a bit of grip strength. It's things that I just took for granted before." Plaintiff estimated that he lost thirty percent (3%) grip strength in his hands since the injury. During cross-examination, Plaintiff agreed that he had received a pay raise since his return to work and is now making a higher hourly rate. Also, Plaintiff acknowledged that he participated in little league activities, throwing a football with his son, and taking a family vacation to Disney World. In behalf of Defendant, co-workers of Plaintiff, Kenneth Gilbert, Jeff Lowery, and supervisor, Sam Luter, testified that Plaintiff was a welder in heavy truck building. All agreed that Plaintiff returned to work, did a fine job, never made any complaints and was a good worker. Luter stated that Plaintiff could do various jobs in the plant. Also, Luter agreed that he had come to work feeling bad, but never complained to his co-workers. MEDICAL EVIDENCE For the record, the C-32 form of Dr. Michael Cobb was made an exhibit. Dr. Cobb's report reflect that Plaintiff was referred to him by Dr. Ronald Bingham as the result of a nerve conduction examination. The examination indicated a diagnosis of carpal tunnel syndrome on December 19, 1999. Dr. Cobb saw Plaintiff on January 12, 2, with a complaint of pain, numbness in both hands, with the right hand worse than the left. Dr. Cobb diagnosed Plaintiff with severe carpal tunnel syndrome, both hands, and recommended surgery for the best chance of a recovery. Otherwise, if decompression of the nerve is delayed, there is more chance that Plaintiff will have some permanent neuropathy. On January 2, 2, Dr. Cobb performed endoscopic carpal tunnel release on the right hand. On February 1, 2, Plaintiff's only complaint was soreness to the right hand following surgery. Plaintiff was ordered to commence grip exercises. Plaintiff agreed to undergo the same procedure on his left hand. On February 8, 2, Dr. Cobb performed endoscopic carpal tunnel release on the left hand. Dr. Cobb's report reflects that -2-
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 12/17/01 | |
| Martha I. Johnson v. Knox Co. Board of Educ.,
E2000-02513-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 trial court found the plaintiff is totally and permanently disabled and further found the Knox County Board of Education liable for 6 percent of the award and the Second Injury Fund liable for 4 percent. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. Paul G. Summers, Nashville, Tennessee, for the appellant Second Injury Fund. Stephen E. Yeager, Knoxville, Tennessee, for the appellees Knox County Board of Education and Tennessee School Boards Association. Thomas S. Scott, Jr., Knoxville, Tennessee, for the appellee Martha I. Johnson. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, 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). Questions of law are reviewed de novo without a presumption of correctness. Peace v. Easy Trucking Co., 38 S.W.3d 526 (Tenn. 21). Facts The plaintiff was 39 years of age at the time of trial. She did not complete high school and did not pass the GED exam. She completed nursing training and took courses in business technology through the Tennessee Technology Center. She is not married and has one child. The plaintiff had various medical conditions prior to the injury_sustained in 1998_at issue in this case, including dyslexia, epilepsy (which she had from birth), a back sprain sustained in 199 while working as a nurse's assistant, and a prior back injury suffered while working for the defendant School Board in 1993, and a stroke-like episode in 1996 caused by toxic levels of Dilantin in her system. In addition, the plaintiff suffers from choreoathetosis or truncal ataxia, a condition that causes her to have involuntary movements. When the plaintiff first went to work for the defendant School Board in December of 1991, she listed the previous back injury that she sustained while working for a nursing home. She also described her epileptic condition. The plaintiff did, however, in her application state that she suffered no disability resulting from the injury at the nursing home or from the epilepsy and that she could perform her duties as a custodian. As a result of the 1993 injury, the plaintiff received temporary total benefits and medical payments. She returned to work but did not claim any permanent disability benefits from this injury. In 1995 or 1996, the plaintiff suffered a toxic episode from a build-up of Dilantin in her system. The effect on the plaintiff was similar to a stroke. As a result of this episode, the plaintiff lost control over her left side, experienced a lack of feeling in her feet, and her left arm became drawn up. The plaintiff was hospitalized for this and was treated for a considerable time. After some recovery from the episode, the plaintiff wished to return to work. Her doctor released her to return to work, but placed restrictions in her written release. When the plaintiff presented her written medical release to William Anderson, III, the person who reviewed medical reports, he told the plaintiff she could not return to work with the restrictions. The plaintiff then persuaded her doctor to remove the restrictions and she returned to Mr. Anderson, who allowed her to return to work. Mr. Anderson testified "if the doctor sends a slip and says no restrictions, then I have to let them back to work." Mr. Anderson testified he knew the plaintiff was not able to do her work before the injury of 1998, which is the subject of this case. When asked if she was unable to do the job prior to the 1998 injury he responded, "no doubt about it." Mr. Anderson testified "the only reason I kind of buried my head to it [the disabilities of the plaintiff] was she had been a good employee." He went on to explain she needed to work and others helped her. All parties agree the School Board had a written policy of not allowing anyone with medical -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Daryl R. Fansler, Chancellor |
Johnson County | Workers Compensation Panel | 12/17/01 | |
| Phillip Coldwell v. Hartford Casualty Ins. Co.
E2000-02950-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 trial court found the plaintiff had sustained an accidental injury and awarded the plaintiff the replacement cost of his prosthetic foot. We reverse the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Lynn C. Peterson, Knoxville, Tennessee, for the appellant, Hartford Casualty Insurance Co. Jana Durham Terry, Morristown, Tennessee, for the appellee, Phillip Coldwell. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, 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). Questions of law are reviewed de novo without a presumption of correctness. Peace v. Easy Trucking Co., 38 S.W.3d 526 (Tenn. 21). Facts The plaintiff, who was injured in a 1979 motorcycle accident, has an above the knee prosthesis. On December 28, 1998, the plaintiff was working for the defendant's insured. He had just dismounted a tow motor and taken a step when he heard a popping, breaking sound and the flex foot section of his prosthesis broke. The plaintiff had to leave before his shift ended in order to seek a replacement prosthetic foot, but he was able to return to work the next day. He suffered no injury to any other part of his prosthetic leg or to his body and suffered no pain when the prosthesis broke. Mr. Terry Parsons of Morristown Orthotics and Prosthetics testified that he examined the flex foot and found no visible signs of wear and tear in the foot. Mr. Parsons also testified that in May of 1998, he had recommended the entire above the knee prosthesis be replaced. He testified his recommendation was based on Medicare guidelines regarding the anticipated life of a prosthetic device as well as the fact that the plaintiff had been experiencing problems with the hydraulic knee. Mr. Parsons also stated the normal life of a prosthesis varies from person to person. The prosthesis at issue in this case was fitted on February 9, 1994, as a replacement for the original, post-accident prosthesis. The plaintiff's health insurance denied the May 1998 claim for the cost of a replacement prosthesis. The trial court found the plaintiff had sustained an accidental injury and awarded the plaintiff the replacement cost of the prosthetic flex foot system. We reverse the judgment of the trial court. Discussion The defendant argues that Tennessee's workers' compensation law does not permit recovery of the replacement cost of the plaintiff's prosthetic foot. In order to be eligible for workers' compensation benefits, an employee must suffer "an injury by accident arising out of and in the course of employment which causes either disablement or death." TENN. CODE ANN. _ 5-6-12. Injury includes whatever lesion or change in any part of the system that produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993). Tennessee case law traditionally follows the premise that some bodily harm resulting from a physical cause must be proven before the "injury" requirement is satisfied. See T. Reynolds, Tennessee Workers' Comp. Prac. and Proc., (4th ed.) _8-1. The question of whether a plaintiff may recover the replacement cost of an artificial member when the accident that damaged the artificial member does not also cause physical injury is one of first impression in this jurisdiction. Generally, in the absence of an express statutory provision that allows compensation for injuries to artificial limbs or members,1 such injuries are not compensable. 9 Couch on Insurance 1 Jurisdictions with such statutes include: Alaska Stat. _23.3.395(17); Cal. Lab. Code _328; _287.2(3); Ind. Rev . Stat.; KRS 342 .1 1(1 ); R.S. M o. (19 99) ; Miss. Code Ann. _ 71 .3-3 (2 ); N.C . Gen . Stat. _97 -2-(6); N.D. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:John K. Wilson, Judge |
Knox County | Workers Compensation Panel | 12/12/01 | |
| Regina Ann Thompson v. Vivra Renal Care, Inc.
W2000-03017-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. Although the only issue at trial was the extent of the employee's permanent disability, the employer contends in this appeal the evidence preponderates against the trial court's findings as to causation and permanency. The panel has agreed to address the issues on appeal and, as discussed below, concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Vivra Renal Care, Inc. Mary Dee Allen, Cookeville, Tennessee, and George L. Morrison, III, Jackson, Tennessee, for the appellee, Regina Ann Thompson MEMORANDUM OPINION The employee or claimant, Regina Ann Thompson, is a licensed practical nurse. She began working for the employer, Vivra Renal Care around September 1995 in its dialysis clinic. She is also trained in the care of HIV positive and hepatitis patients. Approximately two years after beginning work for the employer, she was required to perform a treatment on an HIV positive, hepatitis infected patient. She followed the usual precautions of donning two pairs of gloves, two pairs of shoes, a coat and a cap, then began the treatment in a room secluded from other patients. After she removed the needle from the patient, the patient made an unexpected move and the claimant accidentally stuck herself in the thumb with the dirty needle. Although tests conducted soon after the accident reflected no evidence of infection, she received a notice from the Obion County Health Department that a letter from the Shelby County Health Department indicated that she was HIV positive. She later learned that the letter was intended for someone else with the same or similar name and that she was not infected. The tests had been conducted in Shelby County. She was given literature to read and advised of organizations available to her as her disease progressed. She became anxious about her condition and her family and other personal relationships suffered. Her attorney referred the claimant to Dr. Elias King Bond, a psychiatrist, who established both medical causation and permanency. The record contains no countervailing medical or lay proof. At the time of the trial the claimant was taking prescription antidepressant medication. She is now working for a different employer but becomes squeamish at the sight of blood and in the use of needles. The trial court awarded, inter alia, permanent partial disability benefits based on 15 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The employer argues that the mental injuries are compensable only if they can be traced to an identifiable, stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, citing Batson v. Cigna Property and Cas. Co., 874 S.W.2d 566, 569 (Tenn. 1994). However, mental and nervous illnesses are also compensable when causally connected to a work-related accident. Gentry v. Dupont, 733 S.W.2d 71, 73 (Tenn. 1987). The employer argues that Dr. Bond's report does not establish permanency. From our independent examination of Dr. Bond's report, we disagree. For the above reasons and because the evidence fails to preponderate against the findings of the trial court, the judgment is affirmed. Costs are taxed to the appellant. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:William Michael Maloan, Chancellor |
Obion County | Workers Compensation Panel | 12/11/01 |