Michael A. Smith v. Continental Casualty Co. 02S01-9704-CH-00033
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Trial Court Judge: Hon. 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 T.C.A. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Following a bench trial, the chancellor below found that there was no proof that plaintiff injured his back during the course and scope of his employment, and further found that plaintiff gave his employer no notice of injury. On appeal plaintiff has raised one issue for our consideration: whether the trial court erred in preventing plaintiff from offering proof as to a specific injury and notice of injury by sustaining an objection to certain testimony of plaintiff. In addition, defendant presents one issue: whether the evidence preponderates against the chancellor's finding that plaintiff did not sustain a work-related injury. We find no error and affirm. Michael A. Smith ("plaintiff") was employed by Kroger Grocery Company from 1978 through March 1994. Specifically, on March 16, 1994, plaintiff worked a nine hour shift and went home. The next morning he awoke with extreme pain in his back. He later went to the emergency room of the hospital in Jackson where he was subsequently diagnosed as having osteoporosis and three or four possible compression fractures of the vertebrae in the thoracic spine. When plaintiff's pain did not clear up, his treating physician referred him to Dr. Genaro Palmieri, who practices a specialty of endocrinology and metabolic bone diseases in Memphis. The subsequent examination of plaintiff by Dr. Palmieri confirmed that he indeed had the disease osteoporosis, in which the bones become extremely porous and more easily subject to fracture. X-rays taken by Dr. Palmieri's radiologists confirmed the fractures at T-4 and T-7, which according to the radiologists were old and were present before 1987. During the course of the trial, plaintiff was asked upon direct examination when a doctor first informed him of a connection between his work at Kroger and his back condition. Defendant's objection on the ground of hearsay was sustained by the chancellor. Subsequently, the chancellor ruled that there was nothing to indicate that plaintiff injured his back during the course and scope of his employment, therefore the injury was not compensable. The chancellor also
Smith
Workers Compensation Panel
Jeanette Wilson v. Tecumseh Products Co. 02S01-9704-CV-00031
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Trial Court Judge: Hon. C. Creed Mcginley, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5- 6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Tecumseh Products Company ("defendant") has raised the following issues by this appeal: Did the trial court err (1) in finding that plaintiff's vocational disability arose out of and in the course of her employment, (2) in awarding plaintiff temporary total disability and ordering defendant to pay certain medical expenses, (3) in finding that plaintiff sustained a forty percent permanent partial disability to her right arm and thirty percent permanent partial disability to her left arm, and (4) in charging certain discretionary costs incurred by plaintiff to defendant. We find no error and affirm. Jeanette Wilson ("plaintiff") was an employee of defendant, working on a production line. Her duties involved using a screwdriver to adjust wedges on motors that came down the assembly line. She was required to make adjustments on one side of the motor, turn the motor over and make adjustments on the other side. It is undisputed that these functions required plaintiff to use both of her hands and to lift motors which could weigh up to forty pounds. Plaintiff had no difficulty with her hands and arms prior to coming to work for defendant. She began to experience problems in both arms, specifically her right wrist, in November, 1995. She continued to work until the condition worsened to the point where she felt obliged to see a doctor. Upon notifying the defendant of her condition, defendant provided her with a choice of three physicians who could treat her. Plaintiff chose Dr. John Holancin. Dr. Holancin, after examining plaintiff, placed her on light duty and referred her to Dr. Ronald Bingham for a diagnostic test called an EMG. This test revealed that plaintiff had no median sensory slowing in either wrist, but did have severe median motor conduction slowing across both wrists. He concluded that plaintiff was suffering from severe carpal tunnel syndrome in both hands. Plaintiff continued to work until such time as her hands swelled so much that she was unable to perform her work. In the note that was written by her supervisor to the 2
Wilson
Workers Compensation Panel
Robert Larry Jones v. Magnetek Century Electric, Inc., Etc. 02S01-9706-CH-00055
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Trial Court Judge: Hon. Joe C. Morris, 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 of findings of fact and conclusions of law. In this appeal, the employer, Magnetek Century Electric, Inc., ("defendant") contends that the trial court erred in awarding permanent partial disability benefits on the basis of forty- nine percent (49%) disability to the body as a whole as well as in commuting the award to a lump sum. The panel finds that the award should be modified to one based on twelve and one half percent (12 _%) disability to the body as a whole and that the trial court abused its discretion in making a lump sum award. In May, 1994, Robert Larry Jones ("plaintiff") was working for defendant when a work tool weighing approximately 45 pounds struck plaintiff on the right ankle and cut it. He was taken to the emergency room where the wound was treated and his Achilles tendon was sewn up. As a result of this injury, plaintiff developed a condition known as a Deep Vein Thrombosis in the right leg. This is a blockage of the flow of blood through a deep vein. The emergency room physician referred plaintiff to Dr. Warren Ramer, who treated him from July, 1994 through the time of trial in November, 1996. At the time Dr. Ramer began treating plaintiff, there was edema (for our purposes- swelling) of the lower right leg and ankle. Over the months that followed, plaintiff's condition continued to improve, although his condition at times fluctuated during this period of treatment. In other words, the swelling in plaintiff's leg was more pronounced at some times than it was at others. Plaintiff wore an elastic sock and took medication for the purpose of controlling the swelling in his leg. In October, 1995, at the request of defendant, plaintiff became a patient of Dr. Jessie Davis, a specialist in general vascular surgery in Memphis. Dr. Davis was requested to treat as well as evaluate plaintiff's condition. Dr. Davis' tests revealed a blockage in plaintiff's right leg beginning about three inches below the knee and extending upward about three inches above the knee. Thereafter, both Dr. Davis and Dr. Ramer continued to treat plaintiff jointly and cooperatively, with Dr. Ramer seeing plaintiff about once a month in order to monitor his condition and medication, and Dr. Davis every two or three months to evaluate the status of plaintiff's leg. Dr. Ramer deferred the assignment of any permanent impairment rating to Dr. Davis, the vascular specialist. Dr. Davis last saw plaintiff on April 16, 1996. In Dr. 2
James Buttrey v. Insurance Co. of The State of Pennsylvania 01S01-9705-CH-00102
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Irvin Kilcrease,
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 injury did not arise out of and in the course of employment and that the employee failed to give proper notice of his injury. As discussed below, the panel has concluded the judgment should be affirmed. The claimant is forty-five years old and has an eighth grade education. He was employed in the receiving department of Home Depot, responsible for unloading an average of eighteen or nineteen trailers per day. He was so working on Thursday, April 6, 1995, when six or seven doors fell on his left shoulder and neck. He finished his shift and worked through his pain the next day. By Sunday, he could not move his head from side to side and the pain was so severe that he called the assistant manager of the store. The next day, he went to the company doctor, Barrett Rosen. The doctor told him to take off work and so advised the employer through the employee. On June 18th, he told the store's manager he did not want to file for workers' compensation benefits unless he had to, even though the manager knew he was claiming an injury at work. On the same day, the employee visited Dr. Everett Howell, a neurosurgeon, on the referral of Dr. Rosen. Dr. Howell diagnosed a ruptured cervical disc and testified the injury could have been caused by the accident of April 6th, when the doors fell on the claimant. We find in the record no evidence of another possible cause. The trial judge found the injury to have been one arising out of and in the course of employment and that the claimant had a reasonable excuse for his failure to give the required written notice. 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). An injury arises out of and in the course of one's employment when there is apparent to the rational mind, upon a consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, and occurs in the course of one's employment if it occurs while an employee is performing a duty he was employed to do. Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993). In a workers' compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident "could be" the cause of a claimant's injury, when, from other evidence, it may reasonably be inferred that the incident was in fact the cause of the injury. McCaleb v. Saturn Corp., 91 2
Davidson
Workers Compensation Panel
Christopher v. Sockwell 01S01-9703-CH-00067
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Carol Mccoy,
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 contends the employee's injury did not arise out of her employment. The employee contends the award is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Before she began working for the employer, Printing Industry Association of the South, the employee or claimant, Vance, worked as a nurse technician for Baptist Hospital in Nashville until she suffered a back injury for which she received a workers' compensation award based on fifty percent to the body as a whole. She began working for the present employer on May 23, 1995, doing bindery work requiring repetitive use of the hands. On September 1, 1995, while attempting to lift a carton of tapes, she felt a sudden pain in her shoulder and neck, but finished her shift. She sought medical care the next day when the pain worsened and her hands swelled. She was diagnosed with bilateral carpal tunnel syndrome which was surgically treated. The operating surgeon did not testify, but a report from him reflected that he advised the claimant she would never completely recover from the condition. Two examining physicians confirmed the injury was causally connected to the accident of September 1, 1995 at work. One of them assessed her permanent medical impairment at ten percent to both arms. The chancellor found the claimant's injury compensable and awarded permanent partial disability benefits based on twenty-eight percent to both arms. 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). An accidental injury arises out of one's employment when there is apparent to the rational mind, upon a consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993). The evidence fails to preponderate against the chancellor's finding that the claimant's injury was one arising out of her employment with the defendant. Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent 2
Davidson
Workers Compensation Panel
Sharon Abbott v. Saturn Corp. 01S01-9703-CH-00071
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. William B. Cain,
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 raised by the employee or claimant, Abbott, is that the evidence preponderates against the trial court's finding that her permanent disability is not causally connected to her work- related injury. As discussed below, the panel has concluded the judgment should be reversed. On or about September 1,1993, the claimant,while working for the employer, Saturn, felt a sharp pain in her neck and shoulder while reaching for boxes of parts. She continued to work off and on with pain until November of 1994, when she became disabled to work and was referred by the employer to a Dr. Tom Bartsokas, a family and sports medicine practitioner. The doctor made a preliminary diagnosis of cervical disc disease with myelopathy and myofascial pain syndrome. He excused her from work for one week and ordered a magnetic resonance imaging (MRI) scan. He also prescribed physical therapy. The MRI scan revealed areas of disc bulging in the midline at three levels, particularly C4-C5, C5-C6 and C6-C7 with degenerative disc narrowing from C4 down to C7. In his deposition, Dr. Bartsokas opined the claimant was permanently impaired and gave the following testimony concerning causation: Q. All right. Sir, do you have an opinion, to a reasonable degree of medical certainty, as to what was the cause, then, of this permanent impairment that she has? A. My personal opinion is that, number one, she has cervical disc degeneration. It's a form of disc disease compounded by osteoarthritis, spurring of the spine, and particularly at the level where she had her disc degeneration. And this condition that she was born with the proclivity to manifest was aggravated by the work she performed. In July of 1995, the claimant was referred to Dr. Noel Tulipan, a neurosurgeon, who also found her to be permanently impaired and, by deposition, gave the following testimony: Q. So you said earlier that the patient attributed her condition to her work. My question is to you, do you attribute her condition, the condition that you've described and that you found in her neck, to her work? 2
Maury
Workers Compensation Panel
Jimmy Dayle Shelton, Ii v. The Torrington Co. 01S01-9704-CV-00092
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 employer contends the evidence preponderates against any award of benefits for a claimed occupational disease because (1) the claim is barred by the applicable statute of limitations, (2) the claimant failed to give timely written notice of his claim, (3) the disease did not arise out and in the course of employment, (4) the claimant is not permanently disabled or, if he is, the award of permanent disability benefits is excessive, and (5) the defendant is not the employer for which the claimant was working at the time of the last injurious exposure. As discussed below, the panel has concluded the judgment should be reversed and the case dismissed. The employee or claimant, Shelton, is thirty-eight years old with a high school diploma, twenty-seven credit hours toward an Associate of Arts degree and a certificate in automotive technology. He worked in the employer's ball bearing manufacturing plant from April 14, 198 until September 28, 199, when he quit because something in the plant made breathing difficult for him. He did not tell anyone at Torrington the reason for his quitting. During his employment at Torrington's ball bearing plant, he held positions in different areas of the plant, including the steel yard, the cast iron department, the screw machine department and the shipping department. He testified that breathing was difficult for him in all those areas. Before becoming employed by Torrington, he worked for other employers and had no breathing problems. In the spring of 1989, there was a fire in the plant. The claimant was exposed to smoke for about five minutes. In the spring of 199, he was briefly exposed to steam from an overheated battery. He first received medical treatment for chest pain and tightness on May 25, 1989 and for shortness of breath on May 22, 199. Two pulmonary specialists, Dr. A. Clyde Heflin and Dr. Alan H. Arrington, testified at the trial by deposition as to the claimant's physical condition. At the time of the trial on October 1, 1996, the claimant was employed by Advance Auto Parts as an assistant manager and had been so employed for almost two years. The trial judge found the claimant first knew he had an occupational disease on September 22, 1993, when Dr. Arrington sent a letter to the claimant's attorney, and that the claimant had a compensable permanent partial disability of thirty-five percent to the body as a whole, which the trial judge commuted to a lump sum judgment of $36,36.2, using the agreed upon compensation rate. 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). 2
