Ruth/Raymond Wells vs. J.C Penny W2002-00102-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George H. Brown
This is a premises liability case. The plaintiff customer was shopping in a retail store. After a dispute with an unidentified customer over which customer would purchase certain merchandise, the unidentified customer grabbed the plaintiff's wrist. The plaintiff customer sued the retail store, asserting that the store had a duty to protect her from the customer's assault. The store moved for summary judgment, which the trial court granted. We affirm, finding that the assault was unforeseeable, and therefore the retailer did not have a duty of care to protect the customer from it.
Braden v. Modine Mfg. 03S01-9702-CV-00019
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. James B. Scott,
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. At the time of the trial below, three claims for benefits were at issue. They were: (1) a claim for a back injury in 1994, (2) a claim for an ankle injury in 1995, and (3) a claim under T.C.A. _ 5-6-241 to reconsider the back injury award of 1994. The trial court made the following awards: (1) 12 _% permanent partial disability to the body as a whole for the 1994 back injury, (2) 1% permanent disability to the left leg, and (3) increased the 12 _% back injury award to 55% to the body as a whole. The employer, Modine Manufacturing Company, Inc., and the insurance carrier, Sentry Insurance Company, have appealed from the rulings of the trial court with respect to the 1% award to the left leg and the 55% award to the body as a whole. Our review of these cases is de novo on the record of the trial court accompanied by a presumption of the correctness of the findings of fact unless we find the preponderance of the evidence is otherwise. T.C.A. _ 5-6-225(e)(2). The employee, Inez Braden, was 55 years of age at the time of the first trial and had completed the eighth grade. She began working for Modine in 1979 and worked for about 16 _ years before being terminated by her employer as a result of a general lay-off of employees during January 1996. 1994 Injury Plaintiff testified that during March 1994 she sustained an injury to her back when she was leaning over to obtain a piece of equipment. She was off work for awhile; received therapy treatment; and returned to light duty work. She testified she eventually returned to regular "rotation work" which was prohibited by her medical restrictions and this made her back hurt more. Dr. Robert C. Jackson, testified by deposition and stated she suffered from a strain and gave a 5% medical impairment. He also noted there were degenerative disc changes and said this made it easier to sustain a straining type injury. He opined she should only do light duty work on a 2
Knox
Workers Compensation Panel
Indiana Lumbermen's v. Meade 03S01-9712-CV-00146
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Richard Ladd,
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 employer insists the award of permanent partial disability benefits is excessive and the employee insists he is permanently and totally disabled. Additionally, the employee contends "the trial court erred in rejecting the testimony of the vocational specialist in its totality." As discussed below, the panel has concluded the judgment should be affirmed. The trial court awarded permanent partial disability benefits based on sixty 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). The extent of an injured worker's disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., 75 S.W.2d 15 (Tenn. 1988). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Jones v. Sterling Last Corp., 962 S.W.2d 469 (Tenn. 1998). The employee or claimant, Meade, is 58 years old with a third grade education, an intelligence quotient of 74 and experience as a laborer. He suffered a compensable soft tissue injury to his back, which is the subject of this case. The undisputed medical proof is that he has a permanent impairment of five percent to the body as a whole and is permanently restricted from any repeated bending, stooping or squatting, heavy lifting, working over heavy terrain, excessive ladder or stair climbing, strenuous pushing or pulling, or working with his hands above the level of his shoulders. One doctor restricted him from lifting even twenty pounds occasionally. The claimant attempted to return to work but, because of his restrictions, could not perform his duties, and was not working at the time of the trial. He has no other educational, vocational or job training. A vocational expert testified that he had no reasonably transferable job skills from former employment and opined his vocational disability was one hundred percent. The expert qualified his opinion by saying that although the claimant 2
Knox
Workers Compensation Panel
Wilson v. Coppinger Color Lab 03S01-9711-CH-00130
Authoring Judge: Roger E. Thayer, Special 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. This appeal has resulted from a finding by the trial court that plaintiff, Constance H. Wilson, sustained a compensable injury while in the employment of her last employer, Telecable. The trial court dismissed the case against the former employer, Coppinger Color Lab, Inc., and held Travelers Insurance Company liable as the insurance carrier for the last employer. The only issue is whether the Last Injurious Injury Rule applies so as to hold the last employer liable for the compensable claim. Plaintiff, age 41 years, began working for Coppinger Color Lab, Inc. during August 1986. She worked eight years before leaving to take a job with Telecable. During her eight year period of employment, she did data entry work with a computer. She estimated that this type of work activity consumed about 85-9% of her time. During the last two years of employment, she started having problems with numbness in both hands. Her condition continued to get worse and she testified the numbness and tingling was almost a daily event. However, she continued to work. Plaintiff went to work for Telecable, her last and present employer, on June 1, 1994 and was employed as a dispatcher which involved computer work to a lesser extent than in her former employment. She stated she did this type of work about 25-5% of the time. The first two weeks of this new job was a training period that required her to watch another employee most of the time. While working she continued to have the same problem with her hands and wrists. During the last part of June 1994 she awoke during the night with severe pain in her left arm between her elbow and wrist which she described as being worse than any pain she had ever encountered before. This scared her and she decided to see a doctor. She continued to work and during her last year of employment, she received a promotion to a job classified as an administrative assistant. Her condition began to improve but the medical evidence is quite clear that she needs to have surgery for bilateral carpal tunnel syndrome injury. 2
Sharon Abbott v. Quebecor Printing 01S01-9805-CV-00087
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. James E. Walton,
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 employer, Quebecor, insists the trial judge erred in finding that the plaintiff suffered a permanent compensable injury and that the claim is barred by the last injurious injury rule. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Abbott, initiated this action for the recovery of workers' compensation benefits for a gradually occurring injury to her right arm. After a trial on the merits, the trial court awarded, inter alia, permanent partial disability benefits based on twenty-five percent to the right arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). The claimant began working for this employer in March of 1994, feeding loads of paper into feeding pockets to make magazines. She worked four twelve hour shifts and was off for three days, then worked three twelve hour shifts and was off for four days. From the repetitive use of her right hand and arm, she gradually developed disabling pain and was referred by the employer to Dr. Cooper Beazley, who prescribed steroid injections. She was unable to work for about four weeks. Shortly after returning to work, she was involved in an automobile accident. After that accident, she did not return to work for the employer. Dr. Beazley diagnosed lateral epicondylitis or tennis elbow. He was equivocal as to whether the injury was permanent. Dr. Dewey Thomas, who examined and evaluated the claimant, assigned a permanent impairment rating of ten percent to the right arm. His testimony established a causal connection between the injury and the repetitive use of the claimant's right arm at work and was supported by the lay proof offered by the claimant. The only evidence offered at trial by the employer was the testimony of its insurance administrator, who testified that the claimant did not complain after the steroid injections. At the time of the trial, the claimant was working with pain for another employer. She testified that her disability had not increased as a result of her new job. Where a condition develops gradually over a period of time resulting in a definite, work-connected, unexpected, fortuitous injury, it is compensable as an injury by accident. Brown Shoe Co. v. Reed, 29 Tenn. 16, 35 S.W.2d 65 (1961). Trial courts are not required to accept the opinion of a treating physician over any other conflicting expert medical testimony. The trial judge did not abuse his discretion by accepting the testimony of Dr. Thomas concerning causation and permanency. The first issue is resolved in favor of the claimant. The successive or "last injurious" injury rule is that where an employee 2
Montgomery
Workers Compensation Panel
Nathan v. Harris v. Wendel Adkins d/b/a Tennessee Riders, Inc., Valiant Ins. Co. and Stephen N. Ciancio 01S01-9801-CV-00009
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Hamilton V. Gayden Jr.,
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 employer and its insurer contend in this appeal that the trial court erred in awarding the medical expenses of a nonauthorized provider and that the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant initiated this civil action to recover medical and disability benefits for injuries resulting from a work related accident which occurred on May 23, 1995. After a benefit review conference and trial, the trial court awarded, inter alia, medical expenses and disability benefits based on sixty percent to the body as a whole. Our 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). At the time of the trial, the claimant was thirty years old with a high school education and vocational training in automobile repair. He was in good health before the accident. On the date of the accident, the claimant was working for the employer, Tennessee Riders, operating a mower next to I-4 when his tractor was struck from the rear by a speeding pick-up truck. The truck's bumper struck him in the back and its hood struck him in the head. He was soon transported to the emergency room at St. Thomas Hospital in Nashville, where he was treated and released.1 When the accident occurred, his supervisor, Wendell Adkins, was operating a mower about one hundred yards ahead of him, but did not talk to him at the scene. However, two co-workers visited the claimant to inquire about his condition soon after the accident. He has not returned to work for Tennessee Riders. When his condition worsened, he contacted Dr. Melvin Law, who diagnosed S1 radiculopathy and two bulging discs with nerve root impingement. The doctor provided conservative care, including a back brace, and referred the claimant to a neurologist. Dr. Law assessed his permanent impairment at ten percent to the whole body and restricted him from lifting more than twenty pounds, thirty minutes of continuous standing and walking and thirty minutes of continuous sitting. The neurologist, Dr. Morgan, advised him not to return to work as a mower operator. This doctor diagnosed disequilibrium, post-concussive syndrome and intermittent paresthesias of the hands, possibly resulting from a mild spinal cord contusion or brachial plexus stretch type injury and assessed his permanent medical impairment at fourteen percent to the whole body, of which nine percent was from persistent labyrinthine vertigo. Dr. Morgan restricted the claimant from repetitive bending or prolonged standing of more than two hours and from lifting more than twenty-five pounds; and he referred 1 The claimant testified that St. Thomas refused to treat him because he did not have any identification, but performed a CT scan when he returned and demanded it. 2
Davidson
Workers Compensation Panel
Valerie Parham v. Conwood Company, L.P. 01S01-9804-CV-00069
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. James E. Walton,
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 employee or claimant, Parham, argues that the evidence preponderates against the trial court's finding that she did not suffer a compensable permanent injury. The employee initiated this action for benefits for claimed carpal tunnel syndrome. After a trial on the merits, the trial judge dismissed the claim upon a finding that she did not suffer a compensable injury. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2); Henson v. City of Lawrenceburg, 851 S.W.2d 89 (Tenn. 1993). The claimant's duties at Conwood included monitoring a small conveyor carrying loose tobacco used in producing chewing tobacco and removing stems and foreign material from loose tobacco. Although the work does involve continuously watching the material pass by on the conveyor, it does not involve continuous or repetitive use of the hands. The majority of the stems are removed in an earlier process. The claimant has seen a number of physicians. Dr. Douglas Weikert treated her for complaints of pain in both hands, but opined she did not have carpal tunnel syndrome or any permanent medical impairment. The doctor was equivocal as to whether her pain was causally connected to her employment. Dr. Stephen Pratt diagnosed mild tendonitis but prescribed no restrictions and found no permanent medical impairment. She saw two or three other approved physicians, who did not testify. The claimant also saw three nonapproved physicians. One of them performed carpal tunnel release surgery. Another, Dr. Richard Fishbein, who evaluated but did not treat her, testified he would not have recommended the surgery. Dr. Fishbein, being under the impression that the claimant engaged in repetitive use of her hands at work, opined her injury was work related, as did the operating surgeon,Dr. McCluskey, whose testimony was, at best, equivocal. The trial judge, after evaluating the credibility of the claimant and studying the conflicting medical evidence, found the medical testimony of Drs. Weikert and Pratt to be more reliable. The trial judge, as the trier of fact in workers' compensation cases, has the discretion to determine which expert testimony to accept or reject. Moreover where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's actual findings. Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997). The party claiming the benefits of the Act has the burden of proof to establish his claim by a preponderance of all the evidence. An award may not be based on conjecture; it must be based on material evidence and the rules of 2
Robertson
Workers Compensation Panel
Kenneth Paxton v. Floyd and Floyd, Inc. and Liberty Mutual Ins. Co. 01S01-9710-CV-00230
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. Fairly stated, the issues on appeal are (1) whether the employee or claimant, Paxton, gave or was excused from giving timely notice of his injury, (2) whether the employee suffered a compensable injury by accident, and (3) whether the trial judge erred in ruling on the admissibility of a doctor's report. As discussed below, the panel has concluded the judgment should be affirmed. The employee initiated this action for workers' compensation benefits resulting from an alleged back injury allegedly occurring on April 29, 1996. After a trial on the merits, the trial judge found that the employee's notice to the employer was not timely and that the employee did not suffer an injury by accident on April 29, 1996, as claimed. The trial judge expressly found the employee's testimony to be unworthy of belief. The claim was dismissed. 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). In October of 1995, while working for another employer, the claimant injured his back lifting a cross tie. He received medical care and returned to work for the same employer. He began working for this employer, Floyd and Floyd, on December 7, 1995, and worked thirteen days between that date and April 7, 1996, when he began working full time and worked until May 26, 1996, when his employment was terminated. On July 11, 1996, his attorney sent a letter to Floyd and Floyd, advising the employer that the employee was making a claim "as a result of a work related accident which occurred on or about 1-16-95." That letter was, as the trial judge found, the first notice to the employer, but the employee had complained to co-workers of back pain. The notice was also sent to the former employer, BEC/Allwaste. On July 31, 1996, his back condition was surgically repaired. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. section 5-6-21; McCaleb v Saturn Corp., 91 S.W.2d 412 (Tenn. 1995). For an occupational disease, except asbestos-related disease or coal worker's pneumoconiosis, benefits are not recoverable from the date of the accident to the giving of such notice and no benefits are recoverable unless such written notice is given within thirty days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. Tenn. Code Ann. section 5-6-21. The written notice must state in plain and simple language the name and address of the employee, the time, place, nature and cause of the accident and must be signed by the claimant or someone acting in his behalf. Tenn. Code Ann. section 5-6-22. The only notice given in this case was defective in that it was not timely and did 2
Maury
Workers Compensation Panel
Gerald Dewayne Sharp v. Sharp Transport, Inc. 01S01-9802-CH-00030
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Robert L. Jones,
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. Fairly stated, the issue is whether the employee's increased permanent medical impairment was causally related to an injury occurring in October, 1994. As discussed below, the panel has concluded the judgment should be affirmed. The action was initiated by the employee or claimant, Gerald DeWayne Sharp, to recover workers' compensation benefits for an injury alleged to have occurred on October 19, 1994. After a trial on the merits on January 16, 1998, the trial judge found that the claimant had "failed to establish by a preponderance of the evidence that the October, 1994, on-the-job incident bore any causal relationship to the back surgery performed on the plaintiff in June, 1995" and "that the preponderance of the evidence establishes that the plaintiff's back condition, including the June, 1995 surgery, are all the result of a prior back injury occurring in 199, and are not the result of the on-the-job incident of October, 1994." Accordingly, the claim was disallowed. 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). In April of 199, while working for a different employer, the claimant fell from a loading dock and injured his back. Corrective disc surgery was performed by Doctor Wilburn, who continued to follow the progress of his recovery. The pain from the injury persisted and, in January of 1991, the pain became sharper and radiated into the lower right leg. X-rays in June of the same year revealed narrowing and degenerative changes at the surgical site. Dr. Wilburn diagnosed post laminectomy syndrome with nerve root irritation and in December, 1991, the doctor assigned an impairment rating of fifteen percent to the body from the injury and consequent surgery. On December 2, 1991, he was awarded permanent partial disability benefits based on thirty-two percent to the body as a whole and lifetime medical benefits. In October of 1992, the claimant began working for the present employer, Sharp Transport, Inc. Sixteen months later, he advised Dr. Wilburn that he had experienced intermittent symptoms since the 199 surgery and fairly constant low backache as well as sharp pain in the right hip and cramping in the right calf. Dr. Wilburn advised him not to drive a truck. In September of 1994, the claimant related to the doctor increasing pain over the past couple of weeks in his low back and hip, as well as behind his right knee and into his right calf. Medical treatment was provided by the previous employer's insurer. An MRI revealed arthritis in the area of the earlier surgery and broad based disc protrusion. Dr. Wilburn attributed the changes to the 199 surgery and noted the claimant may have aggravated his back on October 19, 1994, but that he did not have a new injury. In June of 1995, additional surgery was performed to relieve recurrent pain from the earlier injury. Again the former employer's insurer paid the medical expenses upon receipt of the surgeon's 2
Wayne
Workers Compensation Panel
State vs. Steve Paige W2001-03045-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: James C. Beasley, Jr.
In an indictment returned by the Shelby County Grand Jury on August 9, 2001, Defendant, Steve Paige, was charged with two counts of aggravated assault. The indictment alleged that both offenses occurred on January 16, 1999. At a hearing on December 6, 2001, the criminal court, sua sponte, dismissed the indictment because of the State's failure to prosecute. In its order of dismissal, the criminal court found that Defendant was arrested on January 16, 1999, the case was bound over to the grand jury on May 25, 1999, but he was not indicted until twenty-seven months later. The trial court further found that Defendant was arraigned on November 13, 2001, but the State did not have a file on the case and it had to be continued twice for that reason. When the case was called on December 6, 2001, the State could still not produce a file on the case. Accordingly, the trial court dismissed the case with prejudice for the State's failure to prosecute pursuant to Rule 48(b) of the Tennessee Rules of Criminal Procedure. The State appealed. After review, we affirm the trial court's order dismissing the case, but reverse that portion of the order dismissing the case with prejudice, and remand this case for the trial court to enter an amended order dismissing the case without prejudice.
