WORKERS COMPENSATION PANEL OPINIONS
| Teresa L. Crisp v. Liberty Mutual Insurance Company M2002-01236-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: Billy Joe White, Chancellor 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 trial court erred in summarily dismissing her claim for insufficient evidence of a connection between the employment and the State of Tennessee. As discussed below, the panel has concluded there is no genuine issue of material fact and that the employee's insurer is entitled to judgment as a matter of law. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Michael A. Walker, Jamestown, Tennessee, for the appellant, Teresa L. Crisp Joe M. Looney, Crossville, Tennessee, for the appellee, Liberty Mutual Insurance Company MEMORANDUM OPINION The employee or claimant, Ms. Crisp, initiated this civil action to recover workers' compensation benefits. The employer's insurer, Liberty Mutual Insurance Company, moved for summary judgment of dismissal pursuant to Tenn. Code Ann. _ 5-6-115. The trial court granted the motion. The claimant has appealed. Summary judgment is almost never an option in workers' compensation cases; Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. The dispositive issue in this case involves the applicability of a rule of law to undisputed facts. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21) The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense; mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non- existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The claimant entered into a contract of hire with the employer, M & P Utilities, Inc., a Minnesota Corporation, while in the State of Missouri. She worked for the employer in several states before suffering a serious back injury while working in Colorado, where she was hospitalized for five days. She returned to her home state, Tennessee, after leaving the hospital and has received most of her medical care in Tennessee. The claimant rejected an offer to settle her workers' compensation claim under Minnesota law and sued for benefits under Tennessee law. A worker who is injured outside the territorial limits of Tennessee is covered under the Act if, and only if, he or she would have been covered if the injury had occurred within the state and (1) the employment was principally localized within Tennessee or (2) the contract of hire was made in Tennessee. Tenn. Code Ann. _ 5-6-115. Ordinarily, though, if an injury occurs in another state, benefits under the Tennessee Act are not recoverable unless it can be shown that the contract of hire was made in Tennessee. Perkins v. BE & K, Inc., 82 S.W.2d 215, 216 (Tenn. 199). The claimant argues that the statute should be construed to provide coverage under the circumstances of this case because the employer was qualified to do business in Tennessee when she was injured, is a licensed contractor in Tennessee, has had continual workers' compensation insurance in Tennessee since 1996, has bid for jobs in Tennessee for the past several years and the claimant presently works on one of them, has offered Tennessee workers' compensation to its employees injured in Texas, has established an office in Fentress County, the claimant's treating physicians are located in Tennessee, and Liberty Mutual Insurance Company has been providing Tennessee employers with workers' compensation insurance for decades. Under the Tennessee Workers' Compensation Act, the right of an employee who suffers a work-related injury to recover compensation benefits from his employer is governed by the statutes -2- |
Fentress County | Workers Compensation Panel | ||
| Larry White v. Federated Mutual Insurance Company M2002-00621-COA-R3-CV Authoring Judge: John K. Byers, Sr. J. Trial Court Judge: Robert L. Holloway, Judge This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had suffered a 16 percent loss of his left arm and 28 percent loss to his right arm and entered judgment accordingly. The trial court further ordered the defendant to hold the plaintiff harmless for any subrogation claims against him for recovery of medical bills paid by an insurance company under a policy for health care owned by the plaintiff. The defendant says the evidence does not support a finding the plaintiff was injured in the course and scope of his employment with the defendant; the court erred in not finding the last injurious rule should apply; there is no showing the plaintiff suffered any vocational disability to his arms, and that the trial court erred by finding the defendant should hold the plaintiff harmless for any subrogation claims of a health insurance policy for payment made on behalf of the plaintiff for treatment of the carpal tunnel syndrome. 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 JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, C.J., and JOE C. LOSER, SP. J., joined. Gordon C. Aulgur and David Brett Burrow, Nashville, Tennessee, attorneys for the appellant, Federated Mutual Insurance Company. Tracy White Moore, Columbia Tennessee, attorney for the appellee, Larry White. MEMORANDUM OPINION Plaintiff (employee) was forty-nine years of age at the time of trial. He has a twelfth grade education and completed a three-year apprenticeship as an iron worker. Upon completing this apprenticeship, he received a card certifying him as a journeyman iron worker, which entitled him to perform all aspects of the trade including welding, structural steel, concrete work, fundamental iron, and all aspects of building metal buildings and concrete buildings. The plaintiff testified that at the time of the injury that is the cause of this action, he earned his income as a member of a trade union. At the local union hall, there was a listing of jobs he could perform if qualified and he would go out and perform the work. When he was finished with the job or laid off, he would return to the union hall for more work. This is how he came to work for Tomlin Construction Company, the company insured by the defendant. The plaintiff began working for Tomlin on March 24, 1999. He testified that while working for Tomlin between April 19, 1999, and April 26, 1999, he noticed for the first time that his hands were "going to sleep" and becoming numb and his arms began to hurt. He testified that his hands and arms had never bothered him in this manner before April 19, 1999. On May 6, 1999, while seeing his physician for unrelated treatment to his back, the plaintiff told this doctor, Dr. Darrell Rheinhart, about the problems with his hands. Dr. Rheinhart sent the plaintiff for an EMG (nerve conduction study) which was conducted on May 1, 1999. After the EMG, the plaintiff reported his injury to his supervisor at Tomlin and completed a First Report of Injury. After May 1, the plaintiff did not perform any work with his hands (such as welding or tying rebar,) for Tomlin. The remainder of his work for Tomlin involved light duty work that did not involve his hands. The last day the plaintiff worked for Tomlin was July 3, 1999. After leaving Tomlin, the plaintiff continued to work full-time performing welding work for other companies through his trade union. The plaintiff continued seeing physicians about his hand problems as he continued to work as an iron worker. He testified that during this time, his hand condition got no worse but got no better. At the recommendation of these physicians, the plaintiff had carpal tunnel release surgery performed on his right hand on November 9, 1999, and on his left hand on December 11, 1999, by a Dr. Schmidt in Nashville. The plaintiff testified that these surgeries relieved the numbness and tingling in his hands, but that he lost much of his hand strength as a result of the surgeries. He testified that he believed that thirty to forty percent of jobs that formerly would have been available to him are now not available to him due to the loss of strength in his hands. The work the plaintiff did at Tomlin required extensive use of his hands especially the bending and tying of rebar. Rebar is a rod used to strengthen concrete walls. To tie rebar, the worker must use a large pair of pliers to twist wire onto the bar and to bend or shape the bar. The plaintiff was doing this work for Tomlin from four to six hours a day. In addition to this, the plaintiff used an -2- |
White County | Workers Compensation Panel | ||
| Jewell Winningham v. Findlay Industries, M2002-02059-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: James L. Weatherford, Senior Judge 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 trial court erred in denying her application for reconsideration pursuant to Tenn. Code Ann. _ 5-6-241(a)(2). As discussed below, the panel has concluded that, under the circumstances, the claimant is entitled to an evidentiary hearing to determine whether she is entitled to an increased award. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Vacated and Case Remanded JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and BEN H. CANTRELL, SP. J., joined. Sonya Henderson, Thomas, Henderson & Pate, Murfreesboro, Tennessee, for the appellant, Jewell Winningham Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellee, Findlay Industries MEMORANDUM OPINION The employee or claimant, Ms. Winningham, initiated this civil action to recover workers' compensation benefits for injuries suffered when a heavy box of materials fell on top of her while she was working for the employer, Findlay Industries. Her alleged injuries included a crushed left hand with lacerated fingers, a fractured left knee and strains to her neck, back and shoulder. At trial, the claimant contended her award of permanent partial disability benefits should exceed two and one-half times her medical impairment rating for the injury because, although she had returned to work at an hourly wage equal to or greater than what she was receiving at the time of the injury, her actual wages were less than before because she was unable to work as many hours. A medical expert estimated her permanent medical impairment to be 18 percent to the whole body, as a result of her injuries. The special judge found the return to work issue "moot" and awarded permanent disability benefits based on 4 percent to the body as a whole, an amount less than two and one-half times the claimant's medical impairment rating. That judgment was filed on May 26, 2. No appeal was taken and the judgment became final. Thereafter, the claimant petitioned the court for reconsideration pursuant to Tenn. Code Ann. 5-6-241(a)(2) and a "Motion to Clarify" the final judgment. The motion to clarify was argued before a different special judge. At that motion hearing, the court considered the first special judge's testimony that he did not intend to preclude reconsideration by characterizing the return to work issue as moot. Notwithstanding that undisputed testimony, the special judge dismissed the application for reconsideration "based upon the judgment order of May 26, 2." The claimant has appealed. Conclusions of law are reviewed de novo without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). Tenn. R. Civ. P. 59 and 6 specify the post trial motions available to a party who is dissatisfied with a final decision. Motions to clarify are not included. The rules of civil procedure are applicable to actions to recover workers' compensation benefits. Blake v. Plus Mark, Inc., 952 S.W.2d 413 (Tenn. 1997). In addition, the courts are not at liberty to issue advisory decisions. We conclude, therefore, that there is no such thing as a motion to clarify. Under the Tennessee Workers' Compensation Act, the right of an employee who suffers a work-related injury to recover compensation benefits from his employer is governed by the statutes in effect at the time of the injury. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 368 (Tenn. 1998). Such statutes are part of the contract of employment and the rights and responsibilities of such injured employee and his employer can only be ascertained from a consideration of those statutes as construed by the courts. Hudnall v. S. & W. Constr. Co. of Tenn., Inc., 6 Tenn. App. 743, 451 S.W.2d 858 (1969). The entire workers' compensation system of law is statutory. Vinson v. Firestone Tire and Rubber Co., Inc., 655 S.W.2d 931, 933 (Tenn. 1983). The Act is in the nature of an insurance policy and an action to recover the benefits provided therein is an action on a contract. Woods v. City of LaFollette, 185 Tenn. 655, 661, 27 S.W.2d 572, 574 (1948). It must be interpreted in a manner designed to protect workers and their families from the economic devastation that can follow on-the-job injuries. Nance v. State Ind., Inc., 33 S.W.3d 222, 227 (Tenn. 2). Where an injured worker is entitled to permanent partial disability benefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award that the employee may receive is two and one-half times the medical impairment rating pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical -2- |
Warren County | Workers Compensation Panel | ||
| Phineas Dorris v. American Limestone Company, Inc. M2002-00741-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: John H. Gasaway, III, Judge 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 employer questions the trial court's findings as to notice, compensability and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. W. Randall Wilson and Lynda Motes Hill, Chattanooga, Tennessee, for the appellant, American Limestone Company, Inc. C. Michael Lawson, Nashville, Tennessee, for the appellee, Phineas Dorris MEMORANDUM OPINION The employee or claimant, Dorris, initiated this civil action to recover workers' compensation benefits. The trial court awarded permanent vocational disability benefits based on 75 percent to the body as a whole. The employer, American Limestone, has appealed. 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Robertson County | Workers Compensation Panel | ||
| Ken Randall Allmon v. Wolf Tree Experts, Inc., M2002-00366-WC-R3-CV Authoring Judge: John K. Byers, Sr. J. Trial Court Judge: Royce Taylor, Judge This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial judge found the plaintiff suffered an injury to both arms which resulted in a permanent partial impairment of 5 percent to both. The defendant says the trial court erred in finding the plaintiff suffered any injury to his right arm and that the award of 5 percent to the left arm is excessive. We modify and 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 as Modified JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, C.J., and JOE C. LOSER, SP. J., joined. Patrick A. Ruth, Nashville, Tennessee, for the appellants, Wolf Tree Experts, Inc. and Great American Insurance Company. D. Russell Thomas, Murfreesboro, Tennessee, for the appellee, Ken Randall Allmon. MEMORANDUM OPINION Facts At the time of trial the plaintiff was forty-five years of age. He had a high school education and a varied and interesting work history which encompasses such things as working on shrimp boats and being a high rise window washer. The facts surrounding the accident in this case are simple. The plaintiff was in a tree cutting branches with a chain saw on March 21, 2. When the saw cut through a branch, his left arm, which was holding the saw, dropped and he heard a pop in his left elbow. The plaintiff testified he felt intense pain in this elbow after hearing the pop. The plaintiff was taken to the emergency room for medical care and was later treated or seen by Vanderbilt medical personnel. The plaintiff never returned to work for the defendant. He was offered a light duty job by the defendant but was of the opinion he could not do the work based upon his restrictions. Medical Evidence Dr. Douglas B. Haynes, an orthopedic surgeon, saw the plaintiff on March 21, 2. The plaintiff reported he had injured his left arm. Dr. Haynes found some tenderness on both of the plaintiff's elbows. He treated the plaintiff for some time and referred him to Dr. Callahan for a determination of whether surgery was warranted. Dr. Haynes saw the plaintiff for some time and ultimately determined he had a 5 percent impairment to the left arm. He based this on weight lifting restrictions placed by Dr. Callahan. Dr. Haynes found the plaintiff suffered no impairment to the right arm. Dr. David Gaw, an orthopedic surgeon, filed a C 32 form in which he found the plaintiff had a 5 percent impairment to the left arm and zero impairment to the right arm. Dr. David Callahan, an orthopedic surgeon, testified the plaintiff had a degenerative condition in his elbow and that the work he did exacerbated the pain. Gordon Doss, a vocational expert, testified the plaintiff suffered a 5 percent vocational loss as a result of the injury to his arms. Discussion We find from the evidence that the plaintiff suffered a definable traumatic injury to his left arm on March 21, 2. We further find from the testimony of Dr. Gaw and Dr. Haynes that the plaintiff sustained a five percent permanent partial medical impairment to his left arm and no impairment to his right arm. The evidence shows Dr. Callahan found the plaintiff sustained a one percent impairment to both the left and right arms. He found this was as a result of exacerbation of an underlying degenerative condition of the plaintiff's arm but that the only result was that this caused pain. All of the physicians found the plaintiff had zero impairment when the AMA Guideline was used. -2- |
Cannon County | Workers Compensation Panel | ||
| Gary Lindsey v. Philips Electronics, N.A.C. E2002-00396-WC-R3-CV Authoring Judge: Howell N. Peoples, Special Judge Trial Court Judge: O. Duane Sloan, Circuit Judge This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employer appeals a finding of permanent and total disability asserting that the injury is to a scheduled member. We affirm. |
Knox County | Workers Compensation Panel | ||
| Bobbie Jean Satterfield v. Lions Volunteer Blind E2002-00969-WC-R3-CV Authoring Judge: Thayer, Sp. J. Trial Court Judge: Kendall Lawson, Circuit Judge This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 75 percent disability to each arm. The employer has appealed insisting the award is excessive. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed. THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. David J. Silvus, of Knoxville, Tennessee, for Appellant, Lions Volunteer Blind Industries. Danny M. Hryhorchuk, of Morristown, Tennessee, for Appellee, Bobbie Jean Satterfield. MEMORANDUM OPINION The employer, Lions Volunteer Blind Industries, has appealed from the trial court's awarding the employee, Bobbie Jean Satterfield, 75 percent permanent partial disability to each arm. Facts The facts of the case are not in dispute. At the trial the employee was sixty- eight years of age. She had completed the eleventh grade in school and later obtained a G.E.D. certificate. She had been working for this employer for about fifteen (15) years and was employed as a sewing machine operator. This work involved a lot of repetitive actions of the arms and hands and during September 1997, she developed severe problems with her hands and arms. She duly reported the problems to her employer, saw several doctors and ultimately came under the care of Dr. Robert E. Ivy. After undergoing surgery on each arm, she continued to have problems when she worked even though her employer accommodated her inability to perform her work duties normally. She has continued to work because she said she liked the people she works with and is afraid of becoming depressed if she stops work. She testified that her hands still hurt and cramp and sometimes tingle and become numb. She said she was not able to perform in the open labor market. Several company witnesses testified. One official stated she was an excellent employee and that her work load was lighter as they had attempted to accommodate her inability to perform normal functions of a sewing operator. Another company representative said she continued to work a normal schedule unless production was down. Dr. Robert E. Ivy, an orthopedic surgeon specializing in hand disorders, testified by deposition. He stated he first saw her on October 22, 1997 when she was complaining of numbness and tingling in her hands; his diagnosis was bilateral carpal tunnel syndrome and he first tried treatment involving cortisone injections, writ splints and medication. This treatment did not help much and he performed surgery on the right arm on January 19, 1998 and on the left arm on October 28, 1998. The doctor was of the opinion she had a 5 percent medical impairment to each arm. He stated she should consider changing to a different type job and he did not specify any restrictions. He indicated he did not have any other treatment to offer her. Dr. Foster T. Hampton III, also an orthopedic surgeon, did an independent medical examination on April 18, 21 and testified by deposition. His testimony and/or written report indicated the employee (1) had recurrent carpal tunnel syndrome after surgery; (2) recurrent tendinitis flexor tendons of both wrists; (3) recurring problems with trigger thumbs bilaterally; and (4) some residual nerve loss. He gave a 5-1 percent medical impairment to each arm and also recommended she should find another type job which would avoid repetitive action of her arms. Dr. Julian Nadolsky, a vocational disability consultant, testified before the trial court and stated he did not think the employee had any transferable job skills as she was an unskilled worker and that he was of the opinion her vocational disability was 95 percent. He stated she could perform as an usher, ticket taker, greeter, gate tender, etc. Standard of Review We are required to review the case de novo with a presumption that the findings of the trial court are correct unless we find the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-255(e)(2). Analysis The employer contends the 75 percent award to each arm is excessive. The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and -2- |
Knox County | Workers Compensation Panel | ||
| Patsy A. Holcomb v. Memorial Healthcare Systems, Inc. E2002-01226-WC-R3-CV Authoring Judge: Thayer, Sp. J. Trial Court Judge: W. Frank Brown III, Chancellor This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 6 percent permanent partial disability to her right leg. The employer contends the award of disability is excessive. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed. THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. James T. Williams and Lynda Motes Hill, of Chattanooga, Tennessee, for Appellant, Memorial Healthcare Systems, Inc. Harry Weill, of Chattanooga, Tennessee, for Appellee, Patsy A Holcomb. MEMORANDUM OPINION The employer, Memorial Healthcare Systems, Inc., has appealed from the trial court's ruling awarding the employee, Patsy A. Holcomb, 6 percent permanent partial disability to her right leg. Facts The employee, age fifty-two years, was employed at the defendant's hospital as a registered nurse with duties in the operating room as a circulating nurse. On May 11, 1999, she fell while working in the heart room and landed on her right knee, elbow and shoulder. Within a few days, she came under the care of Dr. Ballard who performed an arthroscopy procedure on her knee. She was off work about three weeks and upon returning was assigned to light duties involving paperwork. At the time of the trial below, she was working in the pretesting or pre- admission office. She testified that she was not able to return to work as a surgical nurse because she could not stand for long periods of time and because of other restrictions. She said she could not go up and down steps good and could not do her yard work anymore. She had been advised that she needs knee replacement surgery but she has not had that surgery because she is fearful of "too many things that can go wrong" and also because it would be something that would have to be repeated within five to twelve years. Dr. William T. Ballard, an orthopedic surgeon, testified by deposition and stated he performed an arthroscopy on her knee on May 14, 1999, which involved removing torn cartilage. His diagnosis was partial torn medial meniscus. He felt she reached her maximum medical improvement on about September 15, 1999 and said she should not be squatting or standing longer than ten (1) minutes an hour; that she should not climb more than five (5) steps at a time; that she had medium degenerative changes in her knee and the accident had aggravated this condition; and that she probably needed knee replacement surgery. He gave her a 2 percent medical impairment to her right leg. Dr. Edward D. Johnson, a general practitioner, appeared at the trial and testified and his deposition was also filed in evidence. He saw the employee on April 5, 21 and examined Dr. Ballard's records. He stated that if the patient's knee joint had basically stabilized after surgery, she would have a fairly normal joint and her impairment to the leg would be 2 percent. He was of the opinion her condition and impairment was not in that category. He said the tear had caused the knee joint to become unstable and the ligament was lax and not supported. The doctor indicated this condition caused abnormal motion in the knee joint and that her whole knee was deteriorating and would continue to get worse. He stated she needed a knee replacement and feared having it. He said her impairment was 2 percent to her leg and at a later point said it could be as high as 4-5 percent. He did not agree with Dr. Ballard that she had arthritis in the knee. Dr. Diana Boyd, a certified independent medical examiner specializing in occupation medicine, testified by deposition and said she examined the employee on January 8, 22 and reviewed the various reports of other doctors. She agreed with the 2 percent impairment rating but was of the opinion the injury did not aggravate her pre-existing degenerative joint disease. Dr. Sai H. Oh, a certified medical examiner, saw the employee on February 4, 22 and again at a later date. On the first visit, she felt the medical impairment was about 1 percent to the leg but on the second visit, she estimated the impairment at 2 percent due to abnormal motion of her knee. Standard of Review The review of the appeal is de novo accompanied by a presumption that the findings of the trial court are correct unless we find the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). -2- |
Knox County | Workers Compensation Panel | ||
| Buford Prince v. City of Tullahoma, M2002-00619-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: John W. Rollins, Judge 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 (1) the trial court erred in limiting his award of disability benefits to the maximum of 4 weeks times his weekly compensation rate and (2) the trial court erred in applying his award of temporary total disability benefits against the maximum. As discussed below, the panel finds no reversible error. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Rick L. Moore, Tullahoma, Tennessee, for the appellant, Buford Prince Dale A. Tipps, Nashville, Tennessee, for the appellees, City of Tullahoma and AIU Insurance Company MEMORANDUM OPINION The employee or claimant, Mr. Prince, sought workers' compensation benefits from his employer, City of Tullahoma, and its insurer, AIU, for a work related injury. At the conclusion of the trial, the trial court awarded the claimant permanent partial disability benefits based on 8 percent to the body as a whole, which equates to 32 weeks of benefits at the claimant's compensation rate of $353.33, or $113,65.6. The employee has appealed. 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). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Coffee County | Workers Compensation Panel | ||
| Lucille Cotham, et al. v. Perry County, Etc. M2002-01723-WC-R3-CV Authoring Judge: Joe C. Loser, Jr. Sp. J. Trial Court Judge: Timothy L. Easter, Judge 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 appellants insist the trial court erred in summarily dismissing the claim. As discussed below, the panel has concluded there is no genuine issue as to a material fact and that the employer is entitled to judgment of dismissal as a matter of law. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR. SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Pamela J. Honey Robert E. Kolarich and L. R. DeMarco, Nashville, Tennessee, for the appellant, Lucille Cotham Bradford D. Box and Geoffrey A. Lindley, Jackson, Tennessee, for the appellees, Perry County and Perry County Sheriff's Department MEMORANDUM OPINION This civil action to recover workers' compensation benefits was initiated by the former wife, Pamela Jean Honey, of the deceased employee, Ricky Dale Cotham, to recover workers' compensation benefits for two of his dependent children. His widow, Lucille Cotham, intervened. The trial court granted summary judgment of dismissal. The plaintiff and intervening plaintiff have appealed. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21). The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense. Mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The complaint avers that the deceased employee, Mr. Cotham was killed in an automobile accident which arose out of and in the course of his employment as a deputy sheriff. The employer answered that the injury did not occur in the course of employment because the employee was off duty and on his way home from work at the time of the accident. The undisputed evidence presented before the trial court was that on the day of the accident, the employee was scheduled to work from 7: a.m. to 5: p.m.. Near the end of the shift, he returned his patrol car, went off duty, picked up his personal vehicle and headed home. On his way home, still armed and in uniform, Deputy Cotham was involved in a fatal accident. The appellants contend that it could be inferred from the facts that the employee was in the course of employment at the time of the accident, because a police officer is on call at all hours. However, our examination of the record reveals no evidence that Deputy Cotham was responding to a call when the accident occurred. He was simply on his way home after work The appellee relies on the general rule that employees are not covered by the Workers' Compensation Act while traveling to and from work. However, in Mayor and Alderman of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 84 (1937), cited by the appellants, the Court held that a police officer, who was killed by a drunk driver while walking home from work, was entitled to workers' compensation benefits. In that case, the Supreme Court, finding material evidence to support the trial court's finding that Ward was on duty at the time of his fatal accident, affirmed an award of benefits. The case is clearly distinguishable from the one before this tribunal, as the trial court duly noted, on the facts. Summary judgment is almost never an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. -2- |
Perry County | Workers Compensation Panel | ||
| Whirlpool Corporation v. James Neville M2002-00187-WC-R3-CV Authoring Judge: Byers, Sr.J. Trial Court Judge: Ellen Hobbs Lyle, Chancellor 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 plaintiff (employer) appeals the trial court's decision that the disc herniation in the defendant's (employee's) neck, resulting in cervical radiculopathy, was a gradually occurring injury that arose out of and in the course of his employment with the plaintiff. The plaintiff also appeals on the grounds that it contends that proper notice was not given and that the claim should have been barred by the statute of limitations. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed BYERS, SR.J., in which DROWOTA, J., and LOSER, SP.J., joined. David T. Hooper, of Brentwood, Tennessee, for the Appellant, Whirlpool Corporation. Jerry D. Mayo, of Nashville, Tennessee, for the Appellee, James Neville. 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 finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). 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 defendant (employee) was fifty-three years of age at the time of trial. He did not finish high school, but instead earned his graduate equivalency degree. He has also taken classes in mechanical engineering, electrical engineering , hydraulics, and pneumatics. He served as a policeman in Marinette, Wisconsin, for ten years before coming to Tennessee in 1981. His first job in Tennessee was as a maintenance technician and it was in this position that he came to work for the plaintiff company. The defendant's duties included repair work on a monorail and plumbing maintenance. He testified that most of his duties with the plaintiff company involved plumbing and the use of small tools. The defendant testified that he developed carpal tunnel syndrome out of his work with the plaintiff company and had carpal tunnel release surgery performed by Dr. Vaughan Allen on both hands in 1994. In 1995, he was released with a permanent restriction to avoid continuous flexion and extension of the wrists as well as repetitive work or lifting any objects over thirty-five pounds. He filed a claim for workers' compensation and that claim was settled in 1995 for 27.75 percent permanent disability to both arms and open future medical benefits. The defendant testified that he continued to have hand and arm pain over the following years and was treated for this pain with cortisone shots. The defendant also testified that in the early 199's he had had minor pain in his neck that came and went. He testified that on August 8, 1995, while trying to pull cables on a flat conveyor, he injured his neck but did not report this injury to his supervisor. On March 17, 1999, he reported to Employee Health regarding neck pain and he was treated there with heat on his neck. He testified that on April 24, 1999, while assembling and replacing heavy duty racks, he heard a loud pop and snap in his neck followed by excruciating pain. He testified that the next day his neck hurt very bad. This occurred over a weekend when Employee Health was closed, so he did not report the injury until the following Monday, during which time he continued to work. The defendant testified that he saw Dr. Allen on June 22, 1999, and told him of the neck pain he was having. Dr. Allen performed an MRI (magnetic resonance image) and then recommended surgery to the defendant's neck. Dr. Allen performed surgery on July 15, 1999. The defendant reported that the surgery relieved all his neck and shoulder pain. He returned to work on October 4, 1999, with no restrictions for his neck but still with the prior restrictions for his wrists and hands. After returning to work, he continued to have problems with his arms, wrists, and hands, and these problems got progressively worse. Dr. Allen suggested that the pain was probably caused by tendinitis, but the defendant elected to again have surgery on both wrists and these surgeries were performed in January and February of 2. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the deposition of Dr. Vaughan Allen. Dr. Allen, a board-certified neurological surgeon, testified that -2- |
Davidson County | Workers Compensation Panel | ||
| Elizabeth A. Mcbroom v. Owens-Corning Corp. W2002-01146-SC-WCM-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: Joe C. Morris, Chancellor 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 employer questions the trial court's findings with respect to causation, permanency and extent of disability. As discussed below, the panel has concluded the evidence fails to preponderate against the trial court's findings. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. W. Stephen Gardner and Robert Joseph Leibovich, Memphis, Tennessee, for the appellant, Owens- Corning Corp. Scott G. Kirk, Jackson, Tennessee, for the appellee, Elizabeth A. McBroom MEMORANDUM OPINION The employee or claimant, Ms. McBroom, initiated this civil action to recover workers' compensation benefits for a gradual injury to both arms. At the conclusion of the trial on October 17, 21, the trial court awarded, among other things, permanent partial disability benefits based on 25 percent to both arms. The employer has appealed. 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Madison County | Workers Compensation Panel | ||
| Elizabeth Ann Croley v. Levi Strauss & Co. M2001-01481-WC-R3-CV Authoring Judge: James L. Weatherford, Sr.J. Trial Court Judge: Jeffrey S. Bivins, Chancellor 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. In this case, the employee slipped and fell on a wet floor as she was entering the workplace. The chancellor, who had presided over the trial in this matter, left office before rendering a decision. The employee contends that the chancellor did not have jurisdiction to decide the case because the 6 day time period provided under Tennessee Code Annotated _ 17-1-34(b) for judges who have vacated office to conclude pending cases had expired prior to the entry of an order by the Chief Justice of the Tennessee Supreme Court ordering the former chancellor to conclude the case. The employee also contends that the trial court erred: 1) in finding that the plaintiff failed to prove that her work-related accident caused a permanent right shoulder injury; and 2) by designating a faxed copy of an order as the original. We hold that the evidence does not preponderate against the trial court's finding as to causation. We also find that the trial court did have proper jurisdiction in this case and did not err in designating a faxed copy of an order as the original when the original order was lost. Accordingly, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP.J., joined. Wm. Landis Turner, Hohenwald, Tennessee, for the appellant, Elizabeth Ann Croley. Patrick Alan Ruth, Nashville, Tennessee, for the appellee, Levi Strauss & Co. MEMORANDUM OPINION Mrs. Elizabeth Ann Croley was 62 years old at the time of trial. She completed the 8th grade in school and had no vocational training. She is married with grown children and has legal custody of a grandchild. She had not worked outside the home for 8 or 9 years prior to starting work for Levi Strauss on March 22, 1993, where she operated a machine that placed rivets on blue jeans. On September 9, 1993, Mrs. Croley slipped and fell on a wet floor as she was entering the Levi Strauss plant. According to Mrs. Croley, she reported to the nurses' station where she told the plant nurse her shoulder, elbow, and neck were hurting. She signed an Employee Report of Injury form indicating primary injuries to her right elbow and hip with secondary injuries to her back and neck. She did not indicate an injury to the shoulder on the form. She chose Dr. Jeffrey T. Adams, orthopedist, from a panel of three physicians offered by Levi Strauss. Later that same day, Dr. Adams examined her and found neck pain and tenderness in her lower back. She had a normal neurologic exam of her upper and lower extremities. When asked whether there was any concern about Mrs. Croley's shoulder in the course of his examination, Dr. Adams responded: "No, she had full motion of her shoulders at that time. She really _ her main complaint was in her neck and in her lower back, [those were] her two areas of peak complaints." Dr. Adams prescribed muscle relaxers, physical therapy and placed her on work restrictions. Mrs. Croley continued working for Levi Strauss until November 7, 1993, when she took sick leave for unrelated medical problems. On April 28, 1994, Levi Strauss terminated her employment when she did not return to work after being released to return to work by her gynecologist. Dr. Adams treated Mrs. Croley until September 8, 1994. During that time she underwent a Functional Capacity Evaluation which indicated symptom magnification, MRIs, an EMG conduction study and a psychological evaluation. According to Dr. Adams, she initially started getting better and then "her symptoms suddenly changed gear and got progressively worse and markedly magnified." He concluded based on these tests that there was a psychological component that carried her symptoms to this point. Dr. Adams stated that the only reference to shoulder pain during his treatment of Mrs. Croley did not involve the shoulder joint, but referred to the back of the neck and shoulder blade. In Dr. Adams' opinion, Mrs. Croley did not sustain a rotator cuff tear or other significant shoulder trauma from the September 9, 1993 fall: No. She had no signs of a rotator cuff tear. I saw her hours after her injury, and she could pick her arm up all the way over her head (indicating). With a complete rotator cuff tear, you are extremely -2- |
Hickman County | Workers Compensation Panel | ||
| Bobby William Smith v. Findlay Industries, M2002-01315-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: J. Richard McGregor, Special Master 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 trial court erred in denying his motion for post-judgment interest. As discussed below, the panel has concluded the judgment denying interest should be reversed and the cause remanded for an award of interest from the date of entry of the original judgment. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, J., and JOHN K. BYERS, SR. J., joined. Barry H. Medley and Frank D. Farrar, McMinnville, Tennessee, for the appellant, Bobby William Smith Patrick A. Ruth, Nashville, Tennessee, for the appellee, Findlay Industries/ Gardner Division MEMORANDUM OPINION In the first appeal of this case, this court affirmed the judgment but remanded the cause to the trial court for a determination of the employee's compensation rate. On remand, the trial court corrected the employee's correct compensation rate to $287.58. The judgment was satisfied shortly thereafter. However, the employee 's motion for post-judgment interest was denied. The employee has appealed contending he should be awarded interest. We agree. Conclusions of law are reviewed de novo without a presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The issue before us is one of law and we have reviewed it accordingly. The Workers' Compensation Act expressly requires that it be given "equitable construction" and declares itself to be a remedial Act. Tenn. Code Ann. _ 5-6-116. Workers' compensation laws must be construed so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer. Story v. Legion Ins. Co., 3 S.W.3d 45, 455 (Tenn. 1999). In a workers' compensation case, if an appeal is taken, interest must be computed from the date the judgment was entered by the trial court. Tenn. Code Ann. 5-6-225(g) (1) (22 Supp.); McClain v. Henry I. Siegel Co., 834 S.W.2d 295 (Tenn. 1992). We find no merit in the appellee's contention that the statute is abrogated by the fact that the judgment was modified by the previous appeal. Construing the statute as required, its language is plain. By it, the claimant is entitled to interest from the date of entry of judgment by the trial court until the judgment was paid. The requirement encourages employers to pay disability benefits in a timely fashion. Moreover, the determination of the correct compensation rate could and should have been known to the employer from its own records; and the employer should have paid benefits at that rate. By failing to do so, the employer accepted the risk of having to pay interest. For those reasons, the judgment of the trial court disallowing interest is reversed and the cause remanded for entry of a judgment consistent with this opinion. Costs are taxed to the appellee. ___________________________________ JOE C. LOSER, JR. -2- |
Smith County | Workers Compensation Panel | ||
| Rudy Ochoa v. Peterbilt Motor Company M2002-00410-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: J. O. Bond, Judge 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 employer questions the trial court's findings as to compensability and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Terry L. Hill and Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Peterbilt Motors Company William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Rudy Ochoa, Jr. MEMORANDUM OPINION The employee or claimant, Mr. Ochoa, initiated this civil action to recover workers' compensation benefits for an allegedly work related injury by accident. The employer denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 4 percent to the body as a whole. The employer has appealed. 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Wilson County | Workers Compensation Panel | ||
| Ruth Louise Winchester v. John Doe Insurance Company, M2002-00028-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: John J. Maddux, Jr., Judge 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 employer questions the trial court's findings as to permanency and extent of disability and insists "the trial court erred in its application of the concurrent injury rule." As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. B. Timothy Pirtle and Mary Little, McMinnville, Tennessee, for the appellants, John Doe Insurance Company and Findlay Industries/Gardner Manufacturing Division Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruth Louise Winchester MEMORANDUM OPINION The employee or claimant, Ms. Winchester, initiated this civil action to recover workers' compensation benefits for injuries allegedly arising out of and in the course of her employment with the employer, Findlay Industries. The trial court awarded, among other things, permanent partial disability benefits based on 4 percent to the body as a whole and 15 percent to each hand. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Chester County | Workers Compensation Panel | ||
| Lanny Bernard v. Active USA, Inc. M2002-00663-WC-R3-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: John H. Gasaway, III, Judge 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 employer questions the trial court's findings as to the extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. Luther E. Cantrell, Jr., Nashville, Tennessee, for the appellant, Active USA, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Lannie Bernard MEMORANDUM OPINION The employee or claimant, Mr. Bernard, initiated this civil action to recover workers' compensation benefits. Following a trial on November 26, 21, the trial court awarded, among other things, permanent partial disability benefits based on 45 percent to the right arm. The employer has appealed. 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Robertson County | Workers Compensation Panel | ||
| Janine Merryman v. Aqua Glass Corporation W2001-02897-SC-WCM-CV Authoring Judge: W. Michael William Michael Maloan, Special Judge Trial Court Judge: Martha Brasfield, Chancellor This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the defendant employer Aqua Glass Corporation contends the evidence preponderates against the trial court's finding of a compensable back injury and an award of twenty- six percent (26%) permanent partial disability to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Steven S. Maroney, Amber A. Edwards, Jackson, Tennessee, for appellant, Aqua Glass Corporation Scott G. Kirk, Jackson, Tennessee, for the appellee, Janine Merryman MEMORANDUM OPINION The plaintiff, Janine Merryman (Merryman) was forty-six (46) years old at trial. She graduated from high school and earned a Bachelor's Degree in Religious Arts and Theology. She has a commercial truck driver's license and a certificate for training in computer pattern making. Her prior work experience includes a waitress, waitress trainer, receptionist, dental surgical assistant, cashier, and pattern maker. Merryman began working for Aqua Glass in the production department as a roller and later as a sprayer. She testified she fell at work on November 18, 1996, and hurt her low back, left hip and knee. She felt a pop in her lower back and had a hot pain shoot down her left leg. After giving notice of the accident, she continued to work that day and did not miss any work thereafter. Merryman continued to have pain in her hip and leg and requested to see a doctor. She was referred to Dr. Micky Smith in Savannah, who referred her to Dr. Keith Nord in Jackson. Dr. Nord saw her on March 17, 1997 and took a history of an accident at work but no fall and complaints of hip and knee pain. His physical examination of her back and left leg did not disclose a ruptured disc or lateral meniscus tear in her knee. Dr. Nord diagnosed left hip greater trochanteriz bursitis and released her to work with no restrictions on March 31, 1997. Dr. Nord was of the opinion she had reached maximum medical improvement on February 4, 1998, and assigned no impairment to her back and a five percent (5%) permanent impairment to her left lower extremity. Prior to February 4, 1998, Dr. Nord testified Merryman did not complain of back pain. Merryman continued to see Dr. Nord for hip and knee pain. On her last visit of October 14, 1998, Dr. Nord's office notes state Merryman complained of back pain which Dr. Nord diagnosed as a lumbosacral strain. Merryman testified she told Dr. Nord of her back pain throughout her treatment. Merryman saw Dr. Claiborne Christian on September 29, 1999, for a second opinion. Dr. Christian took a history of a slip and fall at work with injuries to the low back and left extremity and complaints of continued back pain. An MRI did not reveal any abnormalities in her lumbar spine but an X-ray showed early degenerative changes at the L5-S1 level. On her last visit of December 16, 1999, Dr. Christian agreed with Dr. Nord and assigned five percent (5%) impairment for her knee injury and no impairment for her back. Dr.Christian did not find any evidence of spondylolisthesis in Merryman's back. When asked about Dr. Boals' finding of spondylolisthesis, Dr. Christian stated "It is just not consistent with my understanding of her injury which was a slip and fall at work and not a fall off a building or a high speed car accident." Dr. Joseph Boals evaluated Merryman on January 17, 21. Dr. Boals agreed Merryman had a five percent (5%) impairment to her left leg, but was of the opinion the fall at work had aggravated a pre-existing congenital spondylolisthesis at the L5-S1 level in her lower back and assigned a twenty-three percent (23%) permanent impairment to the body as a whole. Dr. Boals states in his notes: "For some reason, it seems the physicians missed this diagnosis (spondylolisthesis)." Dr. Boals assigned permanent restrictions of no prolonged walking, standing, stooping, climbing, repetitive bending or twisting of her back and stated he did not think Merryman could work as an over the road truck driver. Merryman testified she did not have any back problems prior to her fall at work in November 1996, but now has persistent pain in her low back, left hip and knee. She takes prescription pain medication as needed and she would be able to do her previous employment but with difficulty. Merryman left Aqua Glass in October 2 and began in May 21 working with her husband as an over the road truck driver with "one hundred percent (1%) no touch freight." She testified she can no longer ride her motorcycle, bowl, play tennis, or pick up her grandson. -2- |
McNairy County | Workers Compensation Panel | ||
| Conner Bros. Excavating Co., Inc. v. Long E2001-01268-SC-WCM-CV Authoring Judge: William M. Barker, J. Trial Court Judge: Wheeler A. Rosenbalm, Judge We granted this motion for a full court review of the Special Workers' Compensation Panel decision to determine whether the appellant, Clyde L. Long, proved by a preponderance of the evidence that his injury occurred as a result of a work-related incident as required in Tennessee Code Annotated section 50-6-103(a). After a careful review of the record, we hold that the evidence preponderates against the holding of the trial court and Special Workers' Compensation Panel, and that the appellant's injury did arise out of and within the scope of his employment. The judgment of the trial court and the Special Workers' Compensation Panel is reversed. Because the trial court made no other factual findings, the case is remanded to the trial court with instructions to make factual findings regarding: (1) the compensable medical benefits due to the appellant; (2) the temporary disability benefits to which Mr. Long is entitled, and; (3) the proper permanent disability award to which Mr. Long is entitled. Additionally, in the interest of expediting the payment of Mr. Long's medical expenses and the receipt of disability benefits, we direct the trial court to hold such hearing within sixty days of the date of this Court's order. |
Knox County | Workers Compensation Panel | ||
| Michelle Devers v. Aqua Glass Corporation, W2001-02832-SC-WCM-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: Martha B. Brasfield, Chancellor 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 employer insists "the trial court erred in finding that the plaintiff had sustained a compensable injury under the Workers' Compensation Act and, as a result thereof, suffered an 18 percent permanent partial disability to each arm." As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Steven Maroney, J. Arthur Crews and Jay Dustin King, Jackson, Tennessee, for the appellant, Aqua Glass Corporation Edward L. Martindale, Jr., Jackson, Tennessee, for the appellee, Michelle Devers MEMORANDUM OPINION This civil action was initiated by the employee or claimant, Michelle Devers, to recover workers' compensation benefits for gradually occurring work related injuries to her hands and arms. The employer answered by asserting that the claimant failed to give timely written notice of her injuries and denying every allegation of the complaint. After a trial on the merits, the trial court awarded her, among other things, benefits based on 18 percent permanent partial disability to both arms. The employer has appealed, contending the preponderance of the evidence is otherwise. 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
McNairy County | Workers Compensation Panel | ||
| Deborah Griffin v. Ace USA W2002-01433-WC-R3-CV Authoring Judge: John K. Byers, Sr. J. Trial Court Judge: Joe C. Morris, Chancellor This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had sustained a 4 percent permanent partial impairment to her body as a whole as a result of an injury to her left arm,1 which aggravated a previous impairment to her right arm. The employer appeals the trial court's judgment. The employer contends that the plaintiff's injury was to a scheduled member, not to the body as a whole, and that the evidence did not preponderate in favor of the amount of the trial court's award. We conclude that the plaintiff may recover only for the injury to her left arm, a scheduled member, and we modify the plaintiff's award to 5 percent permanent partial disability to the left arm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. P. Allen Phillips, Jackson, Tennessee, for the appellant, Ace USA. Jack Manhein, Jr., Jackson, Tennessee, for the appellee, Deborah Griffin. MEMORANDUM OPINION At the time of trial, the plaintiff, who is married and is the mother of a child, was forty years of age. She has a twelfth-grade education. The plaintiff's work history is, for the most part, that of 1 The trial judge and the testifying physicians refer to the plaintiff's injuries as being to the "upper extremities." However, the Workers' Compensation Act refers to "arms." a food service worker. In 1991, the plaintiff's right arm was broken in an automobile accident. The accident was not job-related. As a result of that injury, the plaintiff has a metal plate in her right arm. On March 22, 2, the plaintiff received a work-related injury to her left ring finger, resulting in amputation of the finger, for which she received compensation based upon a 25 percent loss of use of her left arm. On March 14, 21, while working as a crust stacker for the defendant, the plaintiff's left arm was caught by mechanical flippers on a production line. Her radius and ulnar bones were severely fractured. The plaintiff testified that as a result of the left arm injury she is unable to bend her wrist, that she cannot perform household chores because of the loss of grip, that her left arm is weaker, and that she has pain in her left arm. She further testified that as a result of the injury to her left arm she has to use her right arm more often, which has caused her right shoulder to hurt. The physician who was treating the plaintiff's arm fracture released her to return to work on July 1, 21, without any restrictions. However, the plaintiff was still under restrictions as a result of the March 2 injury. The plaintiff was doing a light-duty job at the time of trial. On July 21, 21, the plaintiff submitted a resignation letter to Aurora Foods, Inc. The plaintiff reported to Aurora that she resigned because she was having pain in both of her arms due to the two accidents she had while working at Aurora. The trial court found that the plaintiff's injury to her left arm aggravated and exacerbated the prior injury to her right arm, resulting in a 4 percent permanent partial disability to the body as a whole. Medical Evidence Dr. W. Randolph Fly, an orthopedic surgeon, saw the plaintiff immediately after the left arm injury2 and performed surgery that consisted of opening the arm and placing plates on the broken bones. Dr. Fly continued to see the plaintiff over a period of several weeks and testified that she progressed normally in the healing process, which included pain and weakness in her arm during the time of treatment. Dr. Fly stated on May 8, 21, that the plaintiff could return to work with restrictions of no lifting over 5 to 1 pounds, no fine manipulation with her left hand, and limited hours of work. On July 1, 21, Dr. Fly found that she had reached maximum medical improvement. He fixed no restrictions on her as a result of the injury to her left arm. He testified the previous restrictions for the injury to her fingers were still in effect. Dr. Fly testified he only 2 Dr. Fly's notes on the date of the plaintiff's injury indicate that the plaintiff reported pain in her left shoulder. Th ere wa s no furth er me ntion o f left should er pa in by D r. Fly. -2- |
Madison County | Workers Compensation Panel | ||
| Ray Dunnagan v. Foamex W2001-03076-SC-WCM-CV Authoring Judge: Joe C. Loser, Jr., Sp. J. Trial Court Judge: Joe C. Morris, Chancellor 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 employer insists (1) the action is time barred, (2) the evidence preponderates against the trial court's finding that the employee's restrictive lung disease was caused by exposure to silica at work and (3) the award of permanent partial disability based on 65 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Joseph M. Crout, Memphis, Tennessee, for the appellant, Foamex Ricky L. Boren, Jackson, Tennessee, for the appellee, Ray Dunnagan MEMORANDUM OPINION The employee or claimant, Ray Dunnagan, initiated this civil action on April 5, 21 to recover workers' compensation benefits for an alleged occupational disease resulting from exposure to chemicals at work. By its answer, the employer denied liability. After a trial on the merits, the trial court resolved the issues in favor of the employee, awarding, among other things, permanent partial disability benefits based on 65 percent to the body as a whole. The employer has appealed. 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. |
Madison County | Workers Compensation Panel | ||
| Stephanie Marie Stephens v. Bekaert Steel Wire W2002-00341-WC-R3-CV Authoring Judge: John K. Byers, Sr. J. Trial Court Judge: Martha B. Brasfield, Chancellor This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained an 8 percent permanent partial disability to the body as a whole as a result of an industrial injury while employed by the defendant.1 The defendant says the plaintiff cannot recover because the plaintiff had a previous injury which was aggravated by the accident, and further says the award is excessive. The medical evidence, however, shows the plaintiff suffered a new and distinct injury. Furthermore, we do not find the evidence preponderates against the finding of the trial judge regarding the amount of the award. 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 JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company. Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Stephanie Marie Stephens. MEMORANDUM OPINION 1 The trial judge ordered a 6 percent set-off against the award because of payment of long-term disability benefits on an insurance policy paid for by the defendant. There is no appeal on this matter. At the time of trial the plaintiff, the mother of five children, was twenty- nine years of age. She has a high school education and has performed manual labor during most of her adult life. In 1995, the plaintiff received an injury to her back from which she had a 9 percent anatomical impairment and received an award of 19 percent to the body as a whole for the injury. On January 11, 2, the plaintiff fell and injured her back in the course of working for the defendant. The plaintiff testified that as a result of the 2 injury she has constant low back pain which increases with activity, burning pain in her back, and pain and numbness in her legs. She also testified that the injury has affected her ability to carry out her daily activities at home. The plaintiff does several exercises on a daily basis and walks as recommended by her doctor. The work that the plaintiff did for the defendant required lifting, standing and twisting. The plaintiff testified that she is no longer able to do this because of her injury. Medical Evidence Dr. Stephen M. Waggoner, an orthopedic surgeon, saw the plaintiff on February 24, 2, on referral from Dr. Riley Jones, who had been seeing the plaintiff since her 2 injury. Dr. Waggoner found the plaintiff had a pre-existing spondylolisthesis at the L5-S1 level which had been aggravated by the work injury. After a period of treatment, Dr. Waggoner did surgery on the plaintiff and placed a "cage" in the area of the injury to immobilize the vertebra. He testified the need for surgery was caused by the fall of 2. He testified that the fall of 2 caused new symptoms which led him to do surgery on the plaintiff's back. He testified the surgery produced new anatomical changes on the plaintiff's back. Dr. Waggoner testified the plaintiff now has limitations on a permanent basis that she did not have before the injury of January 2. He further testified the plaintiff now had permanent restrictions which she did not have prior to the injury of January 2. Dr. Waggoner placed limitations on lifting and prohibited repetitive bending or stooping. He found the plaintiff suffered a 13 percent anatomical impairment as a result of the January 2 injury. Dr. Joseph C. Boals, III, an orthopedic surgeon, saw the plaintiff in April 21, for the purpose of evaluation. Dr. Boals, for the most part, confirmed Dr. Waggoner's findings as to causation and effect. He was of the opinion that the plaintiff suffered a 23 percent impairment to the body as a whole. Dr. Boals was also of the opinion that the injury of January 2 was a new injury and that the plaintiff suffered new pain and new disablement from the injury. Brenda Dailey, a vocational rehabilitation expert, testified that she examined the medical evidence concerning the plaintiff's injury, her physical imitations, her education, etc., and concluded the plaintiff could perform between 1 and 12 percent of the jobs available in the country. -2- |
Lauderdale County | Workers Compensation Panel | ||
| Dale Pratt v. Averitt Express, Inc. E2002-00864-WC-R3-CV Authoring Judge: Howell N. Peoples, Special Judge Trial Court Judge: Daryl Fansler, Chancellor This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employer appeals the trial court's refusal to cap the employee's award at two and one-half times the employee's medical impairment as provided by Tenn. Code Ann. _ 5-6-241(a)(1). We modify the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Knox County Chancery Court is Modified. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. Andrew R. Tillman, LLP, Paine, Tarwater, Bickers and Tillman, Knoxville, Tennessee, for the Appellant, Averitt Express, Inc. Richard Baker, Baker, Gulley & Oldham, P.A., Knoxville, Tennessee, for the Appellee, Dale Pratt. MEMORANDUM OPINION Facts On October 27, 1999, Dale Pratt sustained a back injury in the course and scope of his employment with Averitt Express, Inc. ("Averitt"). His treating physician assigned a permanent medical impairment of seven percent to the body as a whole. At the time of the injury, Pratt was working as a truck driver and was paid $17.1 per hour for both regular and overtime hours he 1 worked. Following the injury, medical restrictions prevented his return to work as a truck driver. Averitt trained him to be a dispatcher and retained him at a salary of $725 for a 4-hour week, the equivalent of $18.12 per hour and paid him overtime at the rate of $9.6 per hour. Mr. Pratt continued to work approximately the same amount of overtime as he had worked before the injury. Pay records introduced at the trial established that because of the difference in overtime pay per hour, the actual average weekly compensation received by Mr. Pratt before the injury was greater than that received after he returned to work in the new position. The trial court held that Mr. Pratt had "not returned to the same wage because he was earning less on an average weekly basis than he did prior to the injury; that the two and a half times under 241 (did) not apply; and that he is entitled to a permanent and partial disability to the body as a whole at three and half times seven percent for a rating twenty-four and half percent to the body as a whole in this case." Standard of Review 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); Tucker v. Foamex, L.P., 31 S.W.3d 241, 242 (Tenn. 2). 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. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Conclusions of law are subject to de novo review with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997). Issue The issue is whether the trial court erred in failing to apply the statutory cap of two and one-half times the employee's medical impairment pursuant to Tenn. Code Ann. _ 5-6- 241(a)(1). Discussion At the time of the trial of this case, the Tennessee Supreme Court had decided the case of Wilkins v. Kellogg Co., 48 S.W.3d 148 (Tenn. 21) relating to an award of temporary partial disability and holding that the term "wage" as used in Tenn. Code Ann. _ 5-6- 27(2) referred to the amount paid to an injured employee by an employer on an hourly basis. The Supreme Court, with two members dissenting, distinguished the term "wage" as used in Tenn. Code Ann. _ 5-6- 27(2) from the term "average weekly wage" used in other portions of the Worker's Compensation Act. In Wilkins, the Court noted that "average weekly wage" includes such compensation as overtime, bonuses and commissions. It held that the term "wage" as used in Tenn. Code Ann. _ 5-6-27(2) did not permit the inclusion of overtime in determining the amount of temporary partial benefits to be paid to an injured employee. Ms. Wilkins normally worked 6 hours each week and was paid at the rate of $21.52 per hour for 4 hours and a higher 2 |
Knox County | Workers Compensation Panel | ||
| Rosie Fuller v. Wal-Mart Stores, Inc., W2002-00745-WC-R3-CV Authoring Judge: John K. Byers, Sr. J. Trial Court Judge: Joe C. Morris, Chancellor This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial judge found the plaintiff had suffered a 9 percent disability to her body as a whole as a result of an injury to her legs and back. The award was apportioned at 75 percent to the employer and 15 percent to the Second Injury Fund because the plaintiff had a previous injury to her leg which amounted to a 25 percent permanent partial disability, which was paid by Wal-Mart. We modify and affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Jay L. Johnson, Jackson, Tennessee, attorney for appellant, Wal-Mart Stores, Inc. David Hardee, Jackson, Tennessee, attorney for appellee, Rosie Fuller. Paul G. Summer, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for the appellee, State of Tennessee. MEMORANDUM OPINION In 1997, the plaintiff developed tarsal tunnel syndrome in her right leg. She was placed in a brace to support her right leg. In September of 1999, the plaintiff started having pain in her left leg. Dr. Wormbrod placed a brace on the left leg as well. Further, the plaintiff began to experience back pain. The plaintiff fell on July 4, 2, while at work and represented she injured both legs and her back. The plaintiff continued to work for the defendant throughout the time of her leg problem and was still working at the time of trial. The defendant assigned her to work at a light-duty job which accommodated the medical restrictions set by physicians. A supervisor testified that plaintiff was a good employee and there was no plan to discharge her. The plaintiff received two raises after her disability and is making more than she was prior to her injuries. Medical Evidence Dr. James Warmbrod, an orthopedic surgeon, was the plaintiff's treating physician. He described the tarsal tunnel syndrome condition the plaintiff suffered and was of the opinion this could be caused by her long hours of standing on concrete in her job. He placed restrictions on long periods of standing, weight lifting, etc., and recommended that she do only sedentary jobs. Dr. Warmbrod did not fix any medical impairment rating, nor did he testify as to a date of maximum medical improvement. He testified the plaintiff might require surgery in the future. He was, however, reluctant to do surgery for various reasons. He was of the opinion the back pain the plaintiff suffered was because her gait was altered as a result of wearing the braces. Dr. Riley Jones, an orthopedic surgeon, filed a C-32 form, basically stating the plaintiff's problems were not related to her work and gave no impairment rating. Dr. Robert Barnett, an orthopedic surgeon, evaluated the plaintiff and confirmed Dr. Warmbrod's opinion of the injuries. Dr. Barnett found the plaintiff had sustained a 44 percent whole body disability. This included a 5 percent rating because of back pain, 15 percent for the left leg problem and 3 percent for the previous injury to the plaintiff's right leg. There is no medical evidence in the record to show the plaintiff sustained any injury to her right leg which would be compensable as a result of the fall of July 4, 2. Findings at Trial The trial judge found the case involved injury to both legs and also to the plaintiff's back. He found the plaintiff had to alter her gait since she began wearing a brace on her right leg in 1999. He found the injury at work on July 4, 2, aggravated her three prior injuries. The trial court found the plaintiff reached maximum medical improvement on June 2, 2, the date Dr. Wormbrod placed work restrictions on her. The trial judge found the plaintiff had sustained a 9 percent whole body disability as a result of the injury and because of the previous disability, which was 25 percent to the body as a whole. The trial court concluded that the defendant must pay 75 percent or 36 weeks of the award and the -2- |
Madison County | Workers Compensation Panel |