Kenneth Fuller v. Liberty Mutual Insurance Company, Madison Industries, Inc. and Sue Ann Head, Director of The Division of Workers Compensation, Tennessee Department of Labor 02S01-9508-CV-00076
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Whit Lafon,
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. In this appeal, the employee or claimant, Fuller, contends "the trial court erred in limiting his permanent total disability award to a maximum total benefit of one hundred forty-two thousand, three hundred eighty-eight dollars ($142,388.), as opposed to ordering lifetime benefits pursuant to Tenn. Code Ann. 5-6-27(4)(A), when the employee was found to be totally disabled." The Second Injury Fund (the Fund) contends the evidence preponderates against the trial court's finding that the claimant is permanently and totally disabled as a result of a work-related injury by accident. The panel concludes the judgment should be modified as provided herein. The claimant has three infirmities. He has a pre-existing avascular necrosis, which was surgically treated and from which he rehabilitated himself and worked for the employer, Madison Industries; he has carpal tunnel syndrome, which he gradually developed from repetitive use of his hands at Madison Industries; and he has Raynaud's disease or mixed connective tissue disorder, vasculitis, unrelated to any on-the-job injury. At the time of the trial, the claimant was thirty-seven years old and had a high school education and a drafting diploma. His working history includes bagging groceries, stocking shelves, operating machines, driving forklifts and production work, as well as drafting. In 1985, Dr. James Warmbrod, an orthopedic surgeon, performed hip surgery on the claimant's hips for bilateral avascular necrosis, secondary to chronic alcoholism. The same doctor performed bilateral carpal tunnel release surgery on the claimant in 1993, after the claimant developed bilateral carpal tunnel syndrome from his work for the employer. Dr. Warmbrod assigned ten percent permanent impairment to both arms and suggested that the claimant be limited to light, sedentary work and not do repetitive work with his hands. The doctor also suggested that, because of the claimant's vasculitis in both arms, which was diagnosed after he developed carpal tunnel syndrome, that he should work in a warm environment. Dr. Robert Winston, an internist, conducted an independent medical examination on June 21, 1994, after vasculitis had been diagnosed, and concluded that the claimant was permanently and totally disabled. The doctor assigned twelve to fifteen percent permanent impairment to each upper extremity and forty percent to the pre-existing hip condition. The trial court found the claimant to be permanently and totally disabled as a result of all three infirmities and awarded benefits accordingly, not to exceed $142,388., the maximum disability award allowable under the 2
Madison
Workers Compensation Panel
Gary W. Hardin v. Great Rivers Employment Aptitude and Technical Service, Inc., et al 02S01-9603-CH-00028
Authoring Judge: Special Judge Billy Joe White
Trial Court Judge: Hon. Joe E. Morris,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5-6-225 (e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that no notice was given by the employee. The panel concludes the judgment should be affirmed as modified. On January 16, 1995, Plaintiff began working at Young Radiator Company as a welder. (T.T. at 16). Plaintiff testified that after he had been working for a period of three weeks, he experienced pain and numbness in his left hand. (T.T. at 17-18). Plaintiff went to see Dr. Charles White of his own accord on February 6, 1995, and paid for the visit through TennCare. (T.T. at 5, 18, 51). Plaintiff testified that he continued to have pain and numbness in his hand and saw Dr. John Phillips on February 22, 1995. (T.T. at 22). Dr. Neblett first saw Plaintiff on February 27, 1995. (Neblett Depo. at 3). Following Dr. Neblett's evaluation, Plaintiff elected to have carpal tunnel release surgery, which was performed on March 9, 1995. (Neblett Depo. at 5-6). The Plaintiff testified that the pain started when he banged on metal and this was what he told his doctors. (T.T. at 61). He further testified, ". . . (b)ut I told them that I didn't know exactly, you know, if that was the cause or not, because I didn't know because I'm not a doctor." (T.T. at 61). Casual connection between the injury and work was related to the employee on March 31, 1995 by Dr. Neblett. (T.R. at 58). Written notice was provided to the employer on April 5, 1995. This panel finds that notice was given within thirty (3) days of knowledge of his injury pursuant to T.C.A. _ 5-6-21 and this case should be affirmed on this issue.
Hardin
Workers Compensation Panel
Gary W. Hardin v. Great Rivers Employment Aptitude and Technical Service, Inc., et al 02S01-9603-CH-00028
Authoring Judge: Special Judge Billy Joe White
Trial Court Judge: Hon. Joe E. Morris,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5-6-225 (e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that no notice was given by the employee. The panel concludes the judgment should be affirmed as modified. On January 16, 1995, Plaintiff began working at Young Radiator Company as a welder. (T.T. at 16). Plaintiff testified that after he had been working for a period of three weeks, he experienced pain and numbness in his left hand. (T.T. at 17-18). Plaintiff went to see Dr. Charles White of his own accord on February 6, 1995, and paid for the visit through TennCare. (T.T. at 5, 18, 51). Plaintiff testified that he continued to have pain and numbness in his hand and saw Dr. John Phillips on February 22, 1995. (T.T. at 22). Dr. Neblett first saw Plaintiff on February 27, 1995. (Neblett Depo. at 3). Following Dr. Neblett's evaluation, Plaintiff elected to have carpal tunnel release surgery, which was performed on March 9, 1995. (Neblett Depo. at 5-6). The Plaintiff testified that the pain started when he banged on metal and this was what he told his doctors. (T.T. at 61). He further testified, ". . . (b)ut I told them that I didn't know exactly, you know, if that was the cause or not, because I didn't know because I'm not a doctor." (T.T. at 61). Casual connection between the injury and work was related to the employee on March 31, 1995 by Dr. Neblett. (T.R. at 58). Written notice was provided to the employer on April 5, 1995. This panel finds that notice was given within thirty (3) days of knowledge of his injury pursuant to T.C.A. _ 5-6-21 and this case should be affirmed on this issue.
Hardin
Workers Compensation Panel
Gregory Leverett v. State of Tennessee 03C01-9511-CR-00362
Authoring Judge: Paul G. Summers
Trial Court Judge: Hon. Douglas A. Meyer, Judge
The appellant, Gregory Leverett, pled guilty to rape. He was sentenced to twelve years incarceration. He petitioned for post-conviction relief. The petition was dismissed as untimely. He now appeals that dismissal. We respectfully reverse and remand for an evidentiary hearing.
Knox
Workers Compensation Panel
Danny J. Adams v. Liberty Mutual Insurance Company and Plumley Companies, Inc. 02S01-9512-CV-00132
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. C. Creed Mcginley
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Henry
Workers Compensation Panel
Danny J. Adams v. Liberty Mutual Insurance Company and Plumley Companies, Inc. 02S01-9512-CV-00132
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. C. Creed Mcginley,
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Henry
Workers Compensation Panel
Lisa Hughes v. Mtd Products, Inc., Cub Cadet Division 02S01-9602-CH-00019
Authoring Judge: Per Curiam
Trial Court Judge: Hon. George Ellis, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supeme 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. Lisa Hughes, ("plaintiff") has appeal ed from the judgment of the trial court denying her claim for workers' compensation benefits on the grounds that she failed to carry her burden of proof as to any permanent partial disability. On appeal, the only issue presented by plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereafter stated, we find that it does not. Plaintiff was employed as an assembly line worker for MTD Products, Inc. ("defendant"), which were engaged primarily in building lawnmowers. In December 1992 she injured her neck and shoulder while lifting a lawnmower deck onto an assembly line. She was initially seen by Dr. White and then by Dr. Joseph P. Rowland, a neurosurgeon. Dr. Rowland found that her problems were muscular in origin and returned her to work with no restrictions and no permanent impairment on February 15, 1993. In April 1993, plaintiff claimed to have sustained a work-related injury to her low back while lifting a l awnmower frame onto a motor. At that time, plaintiff received outpatient treatment by Dr. Jack Pettigrew, who also referred her to Dr. Larry David Johnson, a local orthopedic surgeon. Dr. Johnson treated her as an outpatient, performing among other things x-rays, a CT scan, and myelogram, all of which were normal. On June 21, 1993, Dr. Johnson released her to return to work and confirmed that plaintiff could return to work for full duty with no permanent impairment on July 22, 1993. 2
Haywood
Workers Compensation Panel
Lisa Hughes v. Mtd Products, Inc., Cub Cadet Division 02S01-9602-CH-00019
Authoring Judge: Per Curiam
Trial Court Judge: Hon. George Ellis,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supeme 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. Lisa Hughes, ("plaintiff") has appeal ed from the judgment of the trial court denying her claim for workers' compensation benefits on the grounds that she failed to carry her burden of proof as to any permanent partial disability. On appeal, the only issue presented by plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereafter stated, we find that it does not. Plaintiff was employed as an assembly line worker for MTD Products, Inc. ("defendant"), which were engaged primarily in building lawnmowers. In December 1992 she injured her neck and shoulder while lifting a lawnmower deck onto an assembly line. She was initially seen by Dr. White and then by Dr. Joseph P. Rowland, a neurosurgeon. Dr. Rowland found that her problems were muscular in origin and returned her to work with no restrictions and no permanent impairment on February 15, 1993. In April 1993, plaintiff claimed to have sustained a work-related injury to her low back while lifting a l awnmower frame onto a motor. At that time, plaintiff received outpatient treatment by Dr. Jack Pettigrew, who also referred her to Dr. Larry David Johnson, a local orthopedic surgeon. Dr. Johnson treated her as an outpatient, performing among other things x-rays, a CT scan, and myelogram, all of which were normal. On June 21, 1993, Dr. Johnson released her to return to work and confirmed that plaintiff could return to work for full duty with no permanent impairment on July 22, 1993. 2
Haywood
Workers Compensation Panel
Patty Utley, Widow of Joe Henry Utley, Deceased v. Chester County Highway Department 02S01-9602-CH-00020
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Joe C. Morris,
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 only issue on appeal is whether the chancellor abused his discretion by commuting a portion of the permanent partial disability award to a lump sum. The panel finds the judgment should be affirmed. Joe Henry Utley died as a result of an injury by accident arising out of and in the course of his employment by the Chester County Highway Department. He left a widow, Patty Utley, and four dependent children. The widow and children were awarded dependents' benefits totaling $19,2., payable at the rate of $137.17 per week. The claimant and four children - and another child of hers - were living in a 6 square foot home. She applied to the trial court for a commutation of the award for the purpose of purchasing a larger home. The proof shows and the chancellor found that she is able to wisely manage her money. The trial court ordered $45,2. paid in a lump sum and the balance periodically, as provided by statute. The chancellor found further that moving into a larger home would be in the best interest of both the claimant and the dependent children and directed that the deed be drafted in such a way as would protect the interest of all the beneficiaries. The evidence does not preponderate against that finding. Upon application by a party and approval by a proper court, benefits which are payable periodically may be commuted to one or more lump sum payment(s), if the court finds such commutation to be in the best interest of the dependents of the deceased employee and that the party seeking a lump sum payment has the ability to wisely manage and control the commuted award. Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994). Such applications are not granted as a matter of course. Forkum v. Aetna Life & Casualty Insurance Company, 852 S.W.2d 23 (Tenn. 1993). The claimant has the burden of establishing, first, that a lump sum is in his or her best interest and, second, that he or she is capable of wisely managing and controlling a lump sum, but the decision whether to commute to a lump sum is within the discretion of the trial court. Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554 (Tenn. 1992). We have independently examined the record and find that the chancellor did not abuse his discretion in allowing the partial commutation in this case. The judgment is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Chester
Workers Compensation Panel
Patty Utley, Widow of Joe Henry Utley, Deceased v. Chester County Highway Department 02S01-9602-CH-00020
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Joe C. Morris,
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 only issue on appeal is whether the chancellor abused his discretion by commuting a portion of the permanent partial disability award to a lump sum. The panel finds the judgment should be affirmed. Joe Henry Utley died as a result of an injury by accident arising out of and in the course of his employment by the Chester County Highway Department. He left a widow, Patty Utley, and four dependent children. The widow and children were awarded dependents' benefits totaling $19,2., payable at the rate of $137.17 per week. The claimant and four children - and another child of hers - were living in a 6 square foot home. She applied to the trial court for a commutation of the award for the purpose of purchasing a larger home. The proof shows and the chancellor found that she is able to wisely manage her money. The trial court ordered $45,2. paid in a lump sum and the balance periodically, as provided by statute. The chancellor found further that moving into a larger home would be in the best interest of both the claimant and the dependent children and directed that the deed be drafted in such a way as would protect the interest of all the beneficiaries. The evidence does not preponderate against that finding. Upon application by a party and approval by a proper court, benefits which are payable periodically may be commuted to one or more lump sum payment(s), if the court finds such commutation to be in the best interest of the dependents of the deceased employee and that the party seeking a lump sum payment has the ability to wisely manage and control the commuted award. Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994). Such applications are not granted as a matter of course. Forkum v. Aetna Life & Casualty Insurance Company, 852 S.W.2d 23 (Tenn. 1993). The claimant has the burden of establishing, first, that a lump sum is in his or her best interest and, second, that he or she is capable of wisely managing and controlling a lump sum, but the decision whether to commute to a lump sum is within the discretion of the trial court. Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554 (Tenn. 1992). We have independently examined the record and find that the chancellor did not abuse his discretion in allowing the partial commutation in this case. The judgment is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Chester
Workers Compensation Panel
02A01-9211-CV-00327 02A01-9211-CV-00327
Trial Court Judge: James E. Swearengen
