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| Jonathan Duffy v. Tecumseh Products Co.
W1999-00766-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 defendant, Tecumseh Products Company (Tecumseh), appeals the judgment of the Circuit Court of Henry County which ordered Tecumseh to pay medical expenses to the plaintiff, Jonathan Duffy (Duffy). For the reasons stated in this opinion, we find the trial court erred and reverse the judgment of the trial court.
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Originating Judge:C. Creed Mcginley, Judge |
Henry County | Workers Compensation Panel | 11/14/00 | |
| Jimmy L. Lane v. Schering-Plough Corporation,
E2000-00829-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 State Second Injury Fund has appealed the trial court's ruling that it was not entitled to a credit or setoff for payment of temporary total disability benefits against that portion of the permanent disability award which it is responsible to pay. Judgment of the trial court is affirmed.
Authoring Judge: Thayer, Sp. J.
Originating Judge:Jerri S. Bryant, Chancellor |
Knox County | Workers Compensation Panel | 11/14/00 | |
| Ingram Book Company v. Rebecca Rowland
M1999-01233-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) (1999) for hearing and reporting of findings of fact and conclusion of law. In this case, the employee contends the trial court erred in finding no causal connection between her injury and employment and no permanent partial disability. As discussed below, the panel has concluded that the evidence preponderates against the trial court's findings and reverses its decision. Tenn. Code Ann. _5-6-225(e)(3) Appeal as of Right: Judgment of the Chancery Court Reversed and Remanded TURNBULL, SP. J., in which DROWOTA, J., and LOSER S. J. joined. D. Russell Thomas and Herbert M. Schaltegger, Murfreesboro, Tennessee, for the appellant, Rebecca Rowland. D. Brett Burrow and Delicia R. Bryant, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellee, Ingram Book Company. MEMORANDUM OPINION Background Rebecca Rowland ("Rowland"), the employee-appellant, is a forty-two years old mother of two who has been married for twenty-three years. She dropped out of school in the tenth grade but obtained her GED in 1984. She has worked at various unskilled jobs: Working as a waitress, cook and cashier; cleaning apartments; working as a housekeeper and supervisor for a hotel. Rowland worked for Ingram Book Company [Ingram], the employer-appellee, from 1993 to 1999. She first worked as an order puller, scanning books and placing them on shelves, and then worked as a shagger, locating books that order pullers could not locate. Her last job, prior to her alleged injury, was a job in which she was required to do forceful repetitive hand motions in cutting open cardboard boxes as well as dust mopping with a wide mop. After working in this last job four weeks, she developed carpal tunnel syndrome in April of 1997. Rowland was also diagnosed as having hypothyroidismin November 1997 and has taken medication since December 1997. She returned to work after the surgery and worked for Ingram for one and a half years. Then she left Ingram because of her dissatisfaction with management practices. According to Rowland's own trial testimony, which is unimpeached and uncontradicted, she continued to have pain in her hands, wrists and arms and to have diminished strength in her hands with regard to gripping or twisting. The parties submitted two medical depositions: the testimony of Dr. Martin and Dr. Gaw. Dr. David Martin, a plastic surgeon with additional training in carpel tunnel syndrome, first saw Ms. Rowland on June 19, 1997. Based on her complaints of numbness and pain, his clinical evaluation and the E.M.G. studies of Dr. Richard Lisella, Dr. Martin diagnosed bilateral carpel tunnel syndrome, greater on the left than on the right. He immediately scheduled Ms. Rowland for surgery on her left wrist which was performed on June 27, 1997. He prescribed a wrist splint for her right wrist, also on June 19, 1997. Dr. Martin released the employee to return to one-handed work on July 9,1997. Although the left wrist and hand were improved by surgery, the right handed symptoms increased with the one-handed work, and Dr. Martin scheduled and performed carpel tunnel release surgery on the right wrist on August 12, 1997. She was again released to return to one-handed duties on August 22, 1997. Some thirty-nine days after Ms. Rowland returned to work, Dr. Martin, on October 1, 1997, found that ... "her symptoms have completely resolved. She has mild, residual, right peri-incisional sensitivity which continues to improve." He kept a ten pound weight restriction in force for one month and opined that Ms. Rowland would retain a % [zero] permanent impairment. Dr. Martin treated Ms. Rowland under workers compensation, was paid for his services by workers compensation benefits provided by Ingram, and never made any medical note, nor does the record reveal he expressed any opinion, that the injury was not work related until he gave his deposition on July 1, 1999. Dr. David Gaw, an orthopaedic surgeon, saw Ms. Rowland one time, February 2, 1998. His examination lasted thirty to forty-five minutes. At that time, Ms. Rowland was complaining of continued weakness, transient tingling, pain on repetitive use, and was found to have a positive Phalens test and slightly diminished perception to pin prick. Based upon the patient's history, Dr. Gaw expressed the opinion "most likely cause is the type of work she described down at Ingram Books." He further opined that there was "no real question as to causation" if her history is true. Dr. Gaw assigned a 1%impairment to each arm. Neither of the experts testified that the thyroid [2]
Authoring Judge: Turnbull, Sp. J.
Originating Judge:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 11/14/00 | |
| Jerry Harbison v. Brakebill Nursing Home
E1999-01413-SC-WCM-CV
This case is before the Court upon motion for review filed by the plaintiff-appellant, Jerry Harbison, pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Authoring Judge: Per Curiam
Originating Judge:HON. JOHN F. WEAVER |
Knox County | Workers Compensation Panel | 11/09/00 | |
| Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc
M1999-02260-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 5-6-225 (e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the plaintiff suffered a vocational disability of 12% to the body as a whole from his back injury, and an additional 15% to the left arm from his wrist injury which occurred two months later. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. The panel further concludes that the appeal was frivolous or for the purpose of delay and remands the case to the trial court for imposition of appropriate penalty. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed, Remanded JOHN A. TURNBULL, SP. J., in which FRANK F. DROWOTA, III, J. and FRANK G. CLEMENT, Jr., Sp. J, joined. William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company MEMORANDUM OPINION Facts This case encompasses two separate on-the-job injuries, and two separate awards by the trial judge. Harold W. Ferrell, Jr., ("Ferrell"), the 37 yearold employee-appellee, worked approximately 18 years for APAC-Tennessee ("APAC") employer-appellant, doing construction and manual labor. He has an eleventh grade education, but no G.E.D. On or about March 18, 1997, Ferrell injured his back while lifting a manhole cast-iron casting while working for APAC. Ferrell went to the emergency room, received treatment and was referred by APAC to Dr. Campbell for further treatment. Ferrell returned to work at a light duty assignment for a short time, but soon resumed his full duties. On or about April 2 or 3, 1997, Ferrell sustained an injury to his left arm when he slipped and fell while climbing down the tracks of a bulldozer he had been operating. The injury occurred when Ferrell reached his arm out to prevent his fall. Ferrell sought medical treatment for the arm approximately one week later. APAC once again referred Ferrell to Dr. Campbell. The only medical proof offered by either side at trial was the C-32 Form of Dr. C. Robinson Dyer, a board certified orthopaedic surgeon who examined Ferrell at his attorney's request. Dr. Dyer indicated that it was more probable than not that Ferrell's back and arm injuries arose out of his employment. He assigned Ferrell a permanent partial impairment rating of 5% to the left arm, and 5% to the body as a whole for the back injury. In addition, Dr. Dyer imposed significant restrictions related to the back injury which included: no lifting or carrying more than 5 pounds; no frequent lifting or carrying over 2 pounds; and only occasional climbing, stooping and kneeling. Restrictions placed by Dr. Dyer relative to the left wrist injury included avoiding overhead motion and repetitive twisting of the wrist. These restrictions were first placed on Ferrell by Dr. Dyer on August 11, 1999. After his injuries, Ferrell continued to work for APAC and performed the full duties and occasional heavy lifting and bending required by his job. Ferrell testified that performance of these tasks was followed by resultant pain and stiffness. Ferrell was permanently laid off by APAC in May of 1998 for "lack of work." The only other witness at trial was Harold W. Ferrell, Sr., who, in addition to being the employee's father, was Ferrell's foremen at APAC. APAC offered no witnesses and no evidence. The trial judge made as a specific finding: "I find the witnesses to be credible." The trial court assigned Ferrell a 15% permanent partial disability to the left arm and 12% permanent partial disability to the body as a whole. The trial court was forced to rely heavily on Dr. Dyer's C-32 Form, the only medical proof before the court. The standard of review for findings of fact by the trial court is "de novo upon the record of trial court, accompanied by a presumption of the correctness ofthe finding, unless the preponderance of evidence is otherwise." Tenn. Code Ann. Section 5-6-225(e)(2)(1999). The trial court is in the best position to evaluate the credibility of witnesses. Story v. Legion Ins. Co., 3 S.W.3d 45, 451 (Tenn. 1999). APAC contends that the employee missed no work as a consequence of his injury and has subsequently obtained employment with another construction company doing a similar job at an increased wage with no seasonal layoff. APAC argues that the test for vocational disability is "whether there has been a decrease in the employee's capacity to earn wages in any line of work [2]
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:J. Richard McGregor, Special Judge |
Warren County | Workers Compensation Panel | 10/30/00 | |
| Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and CignaProperty & Casualty Insurance Co.,
M2000-00223-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 5-6-225 (e)(3). The employer contends this claim for work related hearing loss is time barred by notice and statute of limitations provisions, and that the award is excessive. We conclude that notice was timely given, suit was timely filed, and the award is supported by the evidence. JOHN A. TURNBULL, SP. J., in which FRANK F. DROWOTA, III, J., and FRANK G. CLEMENT, Jr., Sp. J, joined. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. MEMORANDUM OPINION Facts The employee, Harold Ferrell, Jr., a 38 year old heavy construction worker with an eleventh grade education, had worked for APAC for eighteen years. In this work he performed such jobs as running a jackhammer, loading dynamite behind a track drill, and operating large equipment in which tasks he was exposed to loud noises approximately ninety percent of the time. In 1985, Mr. Ferrell noticed a ringing in his ears. The problem gradually worsened, and in February, 1994, he consulted Dr. Bell who did not offer an explanation for the cause of his condition, or advise him that his condition was permanent. For the purpose of having his hearing checked by a company doctor, Mr. Ferrell wrote the following letter to APAC on May 1, 1995: I went for a checkup on 2/22/94, and my hearing was bad. Since then it has gotten worse and [is] bothering me. I want this letter to be put in my file. I also want to know what company doctor I need to go to. APAC followed this letter by sending Mr. Ferrell to see Dr. Steele for an examination. During this exam, he specifically asked Dr. Steele if his hearing condition was job related. By letter dated May 25, 1995, the employer advised Mr. Ferrell to wear hearing protection on the job and stated: "According to Malcolm Steele, M.D., you have a hearing condition. This condition is probably inherited instead of job related." Dr. Steele did not advise the employee that his condition was permanent. Shortly thereafter, Mr. Ferrell asked APAC about going to a doctor and was advised that he could go to any doctor he chose at the expense of his own insurance. Mr. Ferrell's hearing continued to worsen and in April, 1998, he returned to Dr. Bell. At that visit, Mr. Ferrell did not ask, nor was he told that his hearing problem was work related. However, in August, 1998, Mr. Ferrell was consulting his attorney, Frank Farrar, on another matter when he was advised that his hearing problem might be work related. This suit was filed the next day, August 2, 1998. The country lawyer's opinion on causation was confirmed by the only medical evidence presented at trial, a C-32 Form, and attached medical records of Dr. Bell, a board certified otolaryngologist. This medical evidence, which APAC chose not to cross-examine, indicates that between 1994 and 1998, Mr. Ferrell's hearing had deteriorated. The 1994 audiogram showed a % combined hearing loss, but the 1998 tests indicated a combined hearing loss of 7% with increased loss of hearing levels to speech. Dr. Bell also expressed the opinion that Mr. Ferrell's permanent hearing impairment more probably than not arose out of his employment with APAC. The C-32 Form was dated March 25, 1999. Mr. Ferrell had been permanently laid off by APAC in April of 1998, but at the time of trial, was working for another construction company wearing noise protection with no reduction in pay. The trial judge, who had the opportunity to observe Mr. Ferrell's reaction to sound at trial, found that notice was timely, the suit was filed within the statute of limitations, and that Mr. Ferrell had suffered a permanent vocational bilateral hearing loss of 4%. The trial judge specifically found Mr. Ferrell's testimony to be credible. Issues [1]
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:J. Richard McGregor, Special Judge |
Warren County | Workers Compensation Panel | 10/30/00 | |
| Penny Michelle Loveday v. Food Lion, Inc.
E1999-00188-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 defendant/appellant, Food Lion, Inc., appeals the trial court's award of temporary total disability benefits, permanent partial disability benefits, and five hundred dollars in costs associated with service of process and subsequent default judgment hearings. Specifically, Food Lion contends the plaintiff, Penny Michelle Loveday, failed to adequately serve her complaint and thus it should not be punished for the ensuing costs associated with the setting aside of the default judgment. Food Lion also contends (1) Ms. Loveday failed to carry her burden of proof with respect to showing she suffered an injury during the course and scope of her employment; (2) the medical testimony failed to establish causation; (3) assuming an injury, the trial judge exceeded the 2.5 multiplier; (4) temporary total disability should have been awarded for only twelve days; and (5) the trial judge improperly excluded the plaintiff medical records and deposition testimony. We affirm.
Authoring Judge: Byers, Sr. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 10/27/00 | |
| Kathy George v. Carrier Corporation, et al
M1999-02577-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. _5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The issue on appeal presented by the employer/appellant is whether the Court erroneously awarded a 25% penalty on temporary total disability benefits in the absence of a finding of bad faith. The employee also appeals and presents a separate issue, whether the employer is entitled to an offset for disability insurance benefits received by the employee for the period of disability. The panel has concluded that the judgment of the trial court should be affirmed.
Authoring Judge: Frank G. Clement, Jr., Sp. J
Originating Judge:Robert E. Corlew, III, Judge |
Cannon County | Workers Compensation Panel | 10/27/00 | |
| Tennessee Protection and Advocacy, Inc., et al v. Janis
M1999-00884-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. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed in part and Affirmed in part; Remanded. LOSER, SP. J., in which BIRCH, J. , and KURTZ, SP. J., joined. Carson W. Beck, Nashville, Tennessee, for the appellant, Janis Greene. Richard E. Spicer, Nashville, Tennessee, for the appellees, Tennessee Protection and Advocacy, Inc., et al. MEMORANDUM OPINION By this appeal, the employee or claimant, Janis Greene, insists the evidence preponderates against the trial court's finding that her carpal tunnel syndrome did not arise out of and in the course of her employment. The employer, Tennessee Protection and Advocacy, Inc. contends the claim is barred by the employee's failure to give timely written notice. As discussed below, the panel has concluded the trial court's order dismissing the claim as not having arisen out of and in the course of employment should be reversed; and the panel has further concluded the trial court's findings with respect to notice and the extent of the claimant's permanent partial disability should be affirmed. The employer initiated this action on September 15, 1997, seeking a declaration that the employee's claimed injury did not arise out of and in the course of employment. The employee served her answer and a counterclaim. Construing the counterclaim fairly and consistently with the evidence and arguments, we have concluded the employee was and is seeking disability and medical benefits authorized by the Workers' Compensation Act. Tenn. Code Ann. _ 5-6- 11 et seq. After a trial of all the issues on February 25, 1999, the chancellor made her findings. Paraphrased, those findings were that (1) the claimant suffered "serious" carpal tunnel syndrome, cause unknown because of insufficient medical proof, (2) timely written notice of her claimed injury was given, (3) as a result of her carpal tunnel syndrome, the claimant retained a permanent partial vocational disability of twenty-five percent to the right hand and twelve and one-half percent to the left hand, (4) her claimed medical expenses were reasonable and necessary and (5) the claimant was a credible witness. Review of findings of fact by the trial court 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). This standard requires the panel to examine in depth a trial court's factual findings and conclusions. The reviewing court is not bound by a trial court's factual findings but instead conducts an independent examination to determine where the preponderance of the evidence lies.
Authoring Judge: Loser, Sp. J.
Originating Judge:Carol Mccoy, Chancellor |
Greene County | Workers Compensation Panel | 10/24/00 | |
| Janice Forbes, et al. v. Cna Insurance Company, et al.
W1999-00710-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 defendants CNA Insurance Company and Day After Day Service, Inc. appealed the judgment of the Chancery Court of Obion County awarding plaintiff Janice Forbes, for deceased husband Jerry Forbes, death benefits for the death of Jerry Forbes from a work-related heart attack. For the reasons stated in this opinion We affirm the judgment of the trial court.
Authoring Judge: Henry D. Bell, Sp. J.
Originating Judge:W. Michael Maloan, Chancellor |
Obion County | Workers Compensation Panel | 10/24/00 | |
| Ronald Devaney v. City of Rockwood and Tml Risk
1998-00780-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 suit barred by the statue of limitations, and granted summary judgment in favor the City of Rockwood and TML Risk Management Pool, Public Risk Services, Inc. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Frank V. Williams, Chancellor |
Knox County | Workers Compensation Panel | 10/17/00 | |
| Vestal Mfg. Co. v. Anderson
E1999-01470-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 appellant, Vestal Manufacturing Co., appeals an award of thirty-five percent disability to the body as a whole to Teresa Anderson. Appellant contends the trial court erred (1) in finding that Ms. Anderson has a twenty percent medical impairment rather than a five percent medical impairment, (2) in concluding Ms. Anderson has a permanent partial disability of thirty-five percent to the body as a whole, and (3) in construing the phrase, "The employer takes the employee as it finds her." We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Lawrence Howard Puckett, Judge |
Knox County | Workers Compensation Panel | 10/17/00 | |
| Willie Grace Green v. Atrium Memorial Surgery
E1999-00730-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 appellant, Atrium Memorial Surgery Center (hereafter "Atrium Memorial"), appeals an award of thirty-five percent disability to the body as a whole to Willie Grace Green. Appellant contends the trial court erred (1) in finding that the employee's underlying preexisting condition was advanced or progressed by her work, and (2) in awarding permanent partial disability benefits in any amount. We affirm the judgment of the trial court.
Authoring Judge: Peoples, Sp. J.
Originating Judge:Jeffrey Stewart, Chancellor |
Knox County | Workers Compensation Panel | 10/17/00 | |
| Thomas Gammons v. Peterbilt Motors Company,
M1999-02575-WC-R3-CV
The trial court found the plaintiff had sustained a permanent partial disability to his right arm of sixty percent, which would entitle him to one-hundred twenty weeks of partial permanent disability. The defendant argues the trial judge erred in setting the amount of the award because the treating physician fixed the medical impairment rating at six percent, and the independent medical examiner fixed the rate at thirty-four percent; the trial judge used neither of these ratings to reach the amount awarded. We affirm the judgment of the trial court.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:J. O. Bond, Judge |
Macon County | Workers Compensation Panel | 10/13/00 | |
| Donna Marcom v. Pca Apparel Industries, Inc. and WaUSAu
M2000-00377-WC-R3-CV
The trial court found the plaintiff had suffered an injury arising out of her employment with the defendant and awarded her a vocational disability of sixty (6%) percent to the left leg. The defendant argues that the evidence does not support the award of sixty (6%) percent to the left leg based on an anatomical rating of twelve (12%) percent. We affirm the judgment of the trial court.
Authoring Judge: Tom E. Gray, Sp.J.
Originating Judge:John Rollins, Chancellor |
Coffee County | Workers Compensation Panel | 10/13/00 | |
| Harold W. Ferrell, Sr. v. Cigna Property & Casualty Ins. Co., et al
M1999-02587-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellants, APAC-Tennessee, Inc. and Cigna Property & Casualty Insurance Co., contend that the trial court erred in finding that the plaintiff was twenty percent (2%) vocationally disabled and awarding him permanent partial disability benefits totaling $39,36.. They argue that the plaintiff could not be vocationally disabled because prior to his injury he had already planned to retire as a result of a preexisting arthritic condition. In other words, since the plaintiff had decided to stop working, he should not recover benefits which relate to future employability and earning capacity. We reject this argument for the reasons stated below, and affirm the judgment of the trial court in its entirety.
Authoring Judge: Frank F. Drowota, III, J.
Originating Judge:Richard Mcgregor, Judge |
Warren County | Workers Compensation Panel | 10/11/00 | |
| Scott Lewis Phillips v. Tennessee Home Improvements, Inc.
M1999-01477-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. _5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The appellant, a vinyl siding company, contends the trial court erred in finding a siding installer to be an employee rather than an independent contractor. The panel has concluded that the judgment of the trial court finding the installer to be an employee should be affirmed.
Authoring Judge: Frank G. Clement, Jr., Sp.J.
Originating Judge:Clara Willis Byrd, Judge |
Scott County | Workers Compensation Panel | 10/11/00 | |
| Donald Mccormick, Etc. v. Aabakus Incorporated, et al
M1999-01234-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. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for further proceedings. The claimant, Donald McCormick, is the surviving spouse of Deborah Elaine McCormick. The couple lived together until Deborah's death on September 1, 1998. At the time of her death, Deborah, the employee, was employed byAabakus Incorporated as a shampoo technician at Illusions Salon and Spa. On September 9, 1998, Deborah clocked out for lunch at 11:31 a.m. She walked to a nearby sandwich shop, where she purchased her meal and an iced tea for a co-worker. At 11:45 a.m., she returned to Illusions and went to the employee break room to eat her lunch. She did not clock back in. Shortly thereafter, she choked on a portion of her sandwich. Responding to Deborah's distress, a co-worker called for paramedics while the salon manager performed the Heimlich maneuver. Initial attempts to dislodge the blockage were unsuccessful. Deborah lost consciousness before paramedics arrived, incurring irreversible brain injury. An ambulance transported her to St. Thomas Hospital, where she was pronounced dead the following morning. Illusions Salon and Spa allows its employees to take a thirty minute lunch break during the workday. Employees clock out during lunch and are not compensated for the break time. The salon's break room contains a refrigerator, microwave and sink. Employees are free to take advantage of the break room during lunch or to eat somewhere off the premises. At trial, Deborah's co-workers testified that management did not require them to be "on call" during lunch: however, two of the three shampoo technicians admitted to working occasionally though infrequently during these breaks. Upon the above evidence, at the conclusion of the plaintiff's case, the defendants moved for a directed verdict on the ground that reasonable minds could not disagree that Deborah's death did not arise out of the employment because she was "off the clock" at the time of the fatal injury. The trial judge found that the claimant had "failed to make out a prima facie case" and dismissed the complaint. 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). Conclusions of law are reviewed de novo without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). A motion for a directed verdict is neither necessary nor proper in a case which is being tried without a jury. See City of Columbia v. C.F.W. Construction Co., 557 S.W.2d 734 (Tenn. 1977). Since the present claim is one for workers' compensation benefits, the case was tried to the court without a jury. For an accidental injury to or death of an employee to be compensable under the Workers' Compensation Act, it must be one arising out of and in the course of employment. See Tenn. Code Ann. _ 5-6-12(12). "Arising out of" refers to the origin of the injury in terms of causation and "in the course of" relates to time, place and circumstance. McCurry v. Container Corp. of America, 982 S.W.2d 841, 843 (Tenn. 1998). Not every injury by accident which occurs in the course of employment is compensable; it is only compensable if it also arises out of employment, but any reasonable doubt as to whether such an injury arises out of the employment should be resolved in favor of the employee. The Act expressly declares itself to be a remedial one and should be construed liberally to effectuate its purpose of justly compensating injured employees and their families. Tenn. Code Ann _ 5-6-116; Williams v Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344 (197); see also Story v. Legion Ins. Co., 3 S.W.3d 45 (Tenn. 1999). Acts necessary to the life, comfort and convenience of an employee while at work are incidental to the -2-
Authoring Judge: Loser, Sp. J.
Originating Judge:Leonard Martin, Chancellor |
Cheatham County | Workers Compensation Panel | 10/05/00 | |
| Nps Energy Services, Inc. v. Robert Jernigan
M2000-00229-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 plaintiff, NPS EnergyServices, Inc. appeals the judgment of the trial court finding that the defendant, Mr. Robert Jernigan sustained an injury within the course and scope of his employment when he slipped and fell while at work aggravating a pre-existing hip condition resulting in hip replacement surgery. The trial court found Mr. Jernigan entitled to a vocational disability of 45% to the body as a whole representing three times the 15% anatomical impairment rating given by both physicians in this matter. For the reasons discussed in this opinion we find that the judgment of the trial court should be reversed and the cause dismissed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed and Dismissed CAROL CATALANO, SP. J., in which ADOLPHO A. BIRCH, JR.,J., and JAMES L.WEATHERFORD SR. J., joined. Jade A. Rogers, Gallatin, Tennessee, for the appellant, NPS Energy Systems, Inc. David Day, Cookeville, Tennessee, for the appellee, Robert Jernigan. MEMORANDUM OPINION Mr. Jernigan was 54 at the time of trial. He had completed high school and had two years of drafting courses in college. He went to trade school for four years and obtained his electrician's license to be an "electrical technician". He works through his Union for various companies in Tennessee and other states. In 1966, Mr. Jernigan broke both his femurs in a car accident and had a metal pin surgically implanted in each leg to support the broken bones. The pin in his left leg was removed six to eight months after the accident due to discomfort, but the pin in his right leg was not removed. In the early 199's, Mr. Jernigan began to notice some "twinges" in his right hip. On December 18, 1992, he saw Dr. Carl Hollman, M.D., at Upper Cumberland Orthopedic Surgery. According to Dr. Hollman's notes, x-rays indicated "severe degenerative changes of the right hip joint." Dr. Hollman prescribed anti-inflammatories, discussed treatment options, and gave Mr. Jernigan information about a total hip replacement. From 1992 to April of 1998, Mr. Jernigan did not see any more doctors concerning his right hip and was able to control occasional hip pain with pain medications. Mr. Jernigan stated that he was "happy as a lark" with this arrangement and did not see the need to consider hip replacement surgery during this time. On April 14, 1998, he returned to the Upper Cumberland Orthopedic Group and saw Dr. Sam Barnes, M.D., who prescribed pain medication. Dr. Barnes noted that Mr. Jernigan's "posttraumatic arthritis of his hip has progressed a whole lot. He has external rotation contracture and he has hip flexion contracture and apparent shortening of the extremity. We discussed total hip replacement. I think he is a candidate now for total hip replacement as he has been for some time." Mr. Jernigan considered his hip pain still manageable and was able to perform his daily personal and work activities, and it was his plan to continue to work until retirement without hip replacement. On September 13, 1998, he began working for NPS as an electrician at the TVA Cumberland City Fossil Fuel Plant making $17.2 an hour. Mr. Jernigan and his co-workers were to remove and repair a 133 ton armature from a transformer on the job site. He knew that this job was a "short duration job". On October 1, 1998, Mr. Jernigan and his co-workers began walking down a corridor with concrete floors that had been varnished recently and the whole area looked wet. Mr. Jernigan stepped into five inch wide ten inch long oblong puddle of water or oil. When he did so, both feet slipped out from under him and he landed hard directly on his right hip. After the fall he was taken to the nurses' station on a stretcher where he received some pain medication and ice. The pain had localized in his right hip, felt "like a huge bruise" and it was "very hard walking". Hoping that he had suffered only a sprain, he returned to work approximately 45 minutes later, but had to leave after his first break because the pain was getting worse. On October 11, 1998, the pain had not subsided and Mr. Jernigan went to the emergency room where he was referred for an appointment with Dr. Richard Williams M.D., an orthopedist at Upper Cumberland Orthopedic Surgery. On October 13, 1998, Dr. Williams reviewed x-rays taken after the fall that showed "severe hip degeneration [but] no obvious new bony deformityor fracture." Dr. Williams diagnosed "severe degenerative joint disease, right hip, with acute exacerbation of pain -2-
Authoring Judge: Carol Catalano, Sp. J.
Originating Judge:Carol Soloman, Judge |
Davidson County | Workers Compensation Panel | 10/04/00 | |
| Barry King v. City of Belle Meade, and
M1999-01432-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. In this case, the employee contends the trial court erred in failing to award workers' compensation disability and/or medical benefits to the employee based upon his work-related hypertension and heart disease. As discussed below, the panel has concluded the trial court's dismissal of the employees workers' compensation claims should be affirmed. Tenn. Code Ann. _5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed Turnbull, Sp. J., in which Drowota, J., and Loser, Sp. J., joined. Daniel Carlton Todd, Nashville, Tennessee, for the appellant, Barry King. Teresa Reall Ricks, Farrar & Bates, Nashville, Tennessee, for the appellees, City of Belle Meade and TML Risk Management Pool, Inc., Appellees. MEMORANDUM OPINION The employee, Barry King ("King"), was employed as a police officer for the City of Belle Meade from January 1988 to September 1997. The City of Belle Meade is insured by TML Risk Management Pool, Inc. On January 6, 1988, prior to his employment as a police officer for the City of Belle Meade, King underwent a physical examination which failed to reveal any presence of hypertension or heart disease. On August 12, 1995, King was diagnosed with an irregular heartbeat and high cholesterol. The following day, he was hospitalized with chest pains. King continued his duties as a police officer for the City of Belle Meade after his release from the hospital. Upon the advice of King's cardiologist nearly two years later, King was referred to and treated by Dr. Marcus C. Houston, M.D., for high blood pressure, high cholesterol, coronary heart disease, carotid artery obstruction, and a history of transient ischemic attacks since June 3, 1997. On September 4, 1997, Dr. Houston suggested to King that he no longer continue to work as a police officer because the stress related to King's job as a police officer constituted a danger to King's health. On September 5, 1997, King terminated his employment as a police officer and submitted his First Report of Work Injury. King claims workers' compensation disability and/or medical benefits based upon his work-related hypertension and heart disease. He argues that job stress caused high blood pressure which in turn caused his heart disease. The employee insists he suffers an occupational disease under Tenn. Code Ann. section 5-6-31[6]. Subsequent to King's filing for workers' compensation, an independent health examination was conducted by Dr. Hal M. Roseman, M.D., who evaluated King's medical records, checked the calibration of King's blood pressure monitor, performed a physical examination of King, and had a psychological test of King performed. Dr. Roseman concluded to a reasonable degree of medical certainty that King's medical condition was not proximately caused by his employment as a police officer. Neither Dr. Roseman nor Dr. Houston can be characterized as a professional witness who commonly testify in worker's compensation cases. Charles Vincent Perry, Jr., the Chief of Police for Belle Meade, testified that King's duties as a police officer for the City of Belle Meade consisted of general patrol duties, specifically as a DUI enforcement officer. King does not specifically claim that any particular incident or event in performing his duties as a police officer precipitated his hypertension or coronary heart disease. From the above summarized evidence, the trial judge found that sufficient medical evidence rebutted the presumption, supplied by Tenn. Code Ann. _7-51-21(a)(1), that King's hypertension and heart disease were "accidental injur[ies] suffered in the course of employment." The trial court held that the employee failed to cite to a specific event or occurrence that precipitated his hypertension and heart disease. ISSUES Did the trial court properly find and conclude that the employee's heart disease is not compensable? [2]
Authoring Judge: Turnbull, Sp. J.
Originating Judge:Hon. Irvin H. Kilcrease, Jr., Chancellor |
Davidson County | Workers Compensation Panel | 09/27/00 | |
| Ernestyne M. Webb v. Shoe City, Inc.,
W1998-00741-WC-R3-CV
This case involves a back injury sustained in 1995 by Ernestyne M. Webb, an employee of Shoe City, Incorporated. The employee brought suit against the employer and its insurer, The Traveler's Insurance Company. The trial court found that the employee had sustained a herniated disk at the L-4 level of her spine and suffered a 15 percent anatomical impairment rating as a result. The court awarded benefits based upon 67.5 percent disability to the body as a whole. The court also found that the employee was not returned to work and declined to apply the two and one-half (2.5) times cap in Tennessee Code Annotated _ 50-6-241(a). The defendants have presented the following issues on appeal: (1) whether the evidence preponderates against the trial court's finding that the plaintiff was not returned to work as required by Tennessee Code Annotated _ 50-6-241(a); and (2) whether the evidence preponderates against the court's finding that the plaintiff suffered a 15 percent anatomical impairment to the body as a whole. We find that we must affirm the trial court's judgment as modified.
Authoring Judge: F. Lloyd Tatum, Senior Judge
Originating Judge:Karen R. Williams, Judge |
Shelby County | Workers Compensation Panel | 09/20/00 | |
| Antonia Regina Rose v. Emerson Motor Company
W1999-02705-SC-WCM-CV
This is an appeal by the defendant/employer. The only issue presented is whether the evidence preponderates against the trial court's award of 35% permanent partial disability to each of the plaintiff's arms. We find it does not and affirm the judgment of the trial court.
Authoring Judge: J. Steven Stafford, Special Judge
Originating Judge:George R. Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 09/20/00 | |
| James C. Barbra v. Clarendon National Insurance
E1999-00232-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 appellant, Clarendon National Insurance Company, is the workers' compensation insurance carrier for United Marine Corporation (hereafter "the employer"). The issue is whether an award of 62-1/2 percent partial disability to the body as a whole is excessive in light of the medical and vocational testimony. We affirm the judgment of the trial court.
Authoring Judge: Peoples, Sp. J.
Originating Judge:D. Kelly Thomas, Judge |
Knox County | Workers Compensation Panel | 09/19/00 | |
| Gratz Carden, Jr. v. The Tennessee Coal Company
E1999-01213-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 a hearing and reporting of findings of fact and conclusions of law. The appellant/defendant challenges the trial court's award of permanent and total disability benefits to the appellee/plaintiff. Also, the appellant contends that the evidence does not support the trial court's award of benefits to the body as a whole. After an in-depth review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed. LAFFERTY, SR. J., in which BARKER, J., and PEOPLES, SP. J., joined. Robert W. Knolton, Oak Ridge, Tennessee, for the appellant, The Tennessee Coal Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Gratz Carden, Jr. MEMORANDUM OPINION Trial Testimony The plaintiff, age 56, testified that he left the eighth (8th) grade to help supplement the family income. He worked in service stations, construction, and spent two years in the United States Army. In 1968, the plaintiff went to work in the coal mines of east Tennessee until his injury of November 15, 1995. The plaintiff stated that he started out as a laborer, was a boss on the job, and served as safety director. At the time of his injury, the plaintiff was a scoop operator. The plaintiff described the coal mines in the Tennessee area as low seam mines. These mines are approximately four (4) feet high. Most of the time a miner must walk bent over or be on their knees. At the time of his injury, the plaintiff was operating a head drive, which drives a belt line. This belt line removes coal from the mine. The plaintiff testified that he had the scoop of the head drive at the top of the mine when he slipped off the back of the head drive, falling about four (4) feet, striking the side of the scoop. The plaintiff was removed from the mine and taken to the Oak Ridge Hospital, where he spent three (3) days. The plaintiff was seen by Dr. John Jernigan for loss of balance, stomach sickness, and loss of hearing. The plaintiff stated that he underwent surgery but his loss of hearing did not improve. After three (3) months, his balance improved where he could walk by himself. Without Dr. Jernigan's knowledge, the plaintiff returned to work, "thinking I was going to get over this . . . I was being told the right side of my brain would block out all this damage." At work, the plaintiff would answer the telephone and occasionally grease the belt line. However, the plaintiff would become sick and have to leave work on occasion. The plaintiff testified that he was laid off after sixteen (16) months when the company closed the mine. Since the injury, the plaintiff testified that he cannot work around the home and has difficulty with walking or gardening. The plaintiff described his vision problems at night, "I'm like a drunk man trying, when I'm in the dark, I just cannot function. I can shut my eyes and go from the living room to the bedroom, if I leave my eyes open I'm bouncing off the walls." The plaintiff stated that he had always worked and provided for his family. His wife did not work outside of the home because he wanted her to stay home and take care of the children. The plaintiff testified that he had sustained two (2) past injuries on the job. The plaintiff broke his right foot, and on another occasion he broke his jaw. As a result, he only missed enough work for the doctor to treat his injuries and returned immediately to work. Since the plaintiff's lay off, he has received no income, but he and his wife have existed on his withdrawn retirement fund. The plaintiff stated that he cannot work an eight (8) hour day or a five (5) day week, due to his dizziness and balance problems. The plaintiff testified that about the time of this surgery, he took medication for his dizziness. Mrs. Bobbie Jean Carden, the plaintiff's wife, testified that her husband has been a great husband and father. She stated that she has never had to work outside the home since it was not necessary. Since the accident, she stated that her husband does not have any balance, and he must be slow in whatever he is doing. Mrs. Carden testified that she cleans houses and cooks for the elderly ladies in the neighborhood for five dollars ($5) an hour. When describing her husband's driving, Mrs. Carden stated, "he scares me to death . . . he cannot hear." Mrs. Carden testified that her husband must wear sunglasses since the sun kills his eyes and gives him a headache. She stated that her husband has a high tolerance for pain. When he broke his jaw and foot he went back to work immediately. Dr. Rodney E. Caldwell, a vocational consultant, testified that he met the plaintiff on December 8, 1998. Dr. Caldwell obtained the plaintiff's beliefs as to his ability to return to work, and he also reviewed the deposition of Dr. Jernigan. Dr. Caldwell stated that, in the interview, the plaintiff had not exaggerated his symptoms, and that they were consistent with what the plaintiff had told Dr. Jernigan. Dr. Caldwell described Dr. Jernigan's definition of "good balance function to mean normal balance function," as rather vague. Dr. Caldwell stated that one with balance problems would have difficulty lifting, climbing and bending over because one would tend to topple over. -2-
Authoring Judge: Lafferty, Sr. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 09/18/00 | |
| Steven Porreca v. Chili's Inc., & Liberty Mutual
E1999-00961-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 plaintiff was burned while working for the defendant restaurant. The defendant did not dispute that the plaintiff suffered a compensable injury but did argue the award of fifty percent permanent partial disability was excessive and also contended the trial court should have allowed an offset for overpayment of approximately two weeks of temporary total disability. We affirm.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Hon. Howell N. Peoples, Chancellor |
Knox County | Workers Compensation Panel | 09/14/00 |