Belinda Dunlap v. Nagle Industries 01S01-9707-CV-00153
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Robert E. Burch,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on twenty-five percent to the body as a whole. As discussed below, the panel has concluded the judgment should be modified and affirmed. At the time of the trial, the employee or claimant, Belinda Dunlap, was forty-one years old and a high school graduate. She worked for the employer, Nagle Industries, on its production line from approximately July, 1991 until September 11, 1992, when she reported to the employer that she was experiencing pain in her right hand after operating a drill press. She was sent to see Dr. Dave Alexander on September 14, 1992. Dr. Alexander initially excused her from work for approximately two and one-half weeks. Three days later, the doctor released her to return to light duty, but she did not return until September 22. Upon her return, she continued to complain of wrist pain and asked to be referred to another doctor. She was allowed to leave work and referred to Dr. Cooper Beazley, who released her to return to left hand work only. There is a factual dispute as to her reason for not performing the work offered. She has since begun working for, apparently, another employer. At the trial, Dr. Beazley testified that he found no abnormality and no permanent impairment. Dr. Larry Laughlin, who examined her at the employer's request, found a normal range of motion and function in the claimant's right elbow, wrist, hand and fingers. Additionally, the claimant was treated by Dr. Winston Griner and evaluated by Dr. Lloyd Walwyn. Dr. Griner diagnosed right carpal tunnel syndrome from repetitive use of the right hand and assessed a permanent impairment rating of fifteen to twenty percent to the right upper extremity. Dr. Walwyn made a similar diagnosis and assessed twenty percent to the right upper extremity, from loss of grip strength in her dominant hand. Both assessments were based on appropriate guidelines. The trial court awarded, inter alia, permanent partial disability benefits based on twenty-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment which cause either disablement or death of the employee are compensable. Reeser v. Yellow Freight Systems, Inc., 938 S.W.2d 69 (Tenn. 1997). Compensation benefits are payable for the number of weeks established by a statutory schedule of the 2
Houston
Workers Compensation Panel
David Richards v. Saturn Corporation 01S01-9706-CV-00131
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Jim T. Hamilton,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant states the issues as follows: 1. "Whether the trial court improperly granted Plaintiff's Motion to Permit Additional Proof after entering a final order of judgment; 2. "Assuming arguendo that the trial court properly granted Plaintiff's Motion to Permit Additional Proof, whether the proof introduced at both trials preponderates against the trial court's finding that Plaintiff was one hundred percent occupationally disabled; and 3. "Whether the "Amended Final Order" entered by the trial court inaccurately reflected the trial proceeding." Fairly stated, the issue is whether the evidence preponderates against an award of permanent partial disability based on one hundred percent to both arms and in favor of a lesser award. As discussed below, the panel has concluded the judgment should modified. This trial began on May 8, 1996 and was taken under advisement after both sides rested on May 8, 1996. On May 28, 1996, the plaintiff applied for leave to reopen its proof. The next day, the trial judge, apparently without having seen the motion to reopen, entered an order awarding the claimant permanent partial disability benefits based on twenty-percent to the body as a whole. The motion was argued two days later, on May 31, 1996, and was granted by an order entered on June 17,1996. Thereafter, additional proof was allowed and, on December 19, 1996, the trial court entered an amended final order allowing an additional eighty percent permanent partial disability to both arms. The appellant argues the trial judge abused his discretion by reopening the proof and that the amended judgment was void for lack of subject matter jurisdiction. Since the motion to reopen was timely made, the panel concludes the trial court had jurisdiction, in the exercise of its discretion, to reopen the proof. Moreover, we find no abuse of that discretion. The first issue is resolved in favor of the appellee. The employee or claimant, Richards, is thirty-eight years old, who has worked for General Motors since 1977. He began working for Saturn in 1993 and was, at that time, in excellent physical condition. From repetitive use of his hands on the production line, he gradually developed chronic overuse syndrome of both arms. As a result, he is unable to perform any job requiring the use of power tools or be placed in any of the present job openings at Saturn. He has thus been placed by Saturn on long term disability leave of absence. The employer concedes the injury is work related. Dr. Paul Parsons, who treated the claimant, opined by deposition on February 27, 1996 that the claimant was not permanently impaired. Dr. David Gaw, who examined the claimant, assessed a permanent medical impairment rating of ten percent to both arms and advised him to permanently 2
Rosemary Liszeski v. Athens Furniture Inc. 03S01-9703-CH-00035
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Earl H. Henley,
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's husband had died as the result of a heart attack while in the course and scope of his employment and awarded her survivors benefits under the Workers' Compensation Act. We reverse the judgment of the trial court and dismiss the case. Thomas Liszeski, the husband of the plaintiff, suffered a heart attack on August 1, 1995 while working in the furniture factory of the defendant. Mr. Liszeski died as a result of this on August 13, 1995. No one was with Mr. Liszeski when he suffered the heart attack. He was found lying on the floor with a wound to his head. At the time of the event, Mr. Liszeski was 47 years of age. His work consisted of operating a machine known as a router. The employee would lift a piece of wood that weighed less than eight ounces and place it on the machine to be cut. He would then stack the cut pieces into a pile. There is, as is usual in cases of this nature, conflicting evidence amongst witnesses as to facts surrounding the event. These touch not only the condition of the employee before the event but also the circumstances and conditions surrounding his work. The defendant offered testimony from a fellow employee of the deceased that the employee's wife said her husband was not feeling well prior to going to work and that he complained of pain in his chest. There was further testimony from fellow employees who testified the deceased did not look well before going to work and that the deceased said he did not feel well. The plaintiff denied that she had said the deceased was not feeling well prior to going to work. Beyond this, the plaintiff called witnesses who testified they were present when the plaintiff talked to a fellow employee of the deceased and that they did not hear the plaintiff say the deceased was not feeling well. The evidence in this record shows the work being done by the deceased was not strenuous work. The environmental evidence shows the ambient or outside 2
