Workers Compensation Panel Opinions

Format: 02/22/2018
Format: 02/22/2018
David Hickman v. Continental Baking Company
W1999-00520-WC-R3-CV
Authoring Judge: Don R. Ash, Sp. J.
Trial Court Judge: Floyd Peete, Jr., Chancellor
The trial court did not issue a final order in this case. We therefore remand with instructions for further proceedings and a final judgment.
Hickman County Workers Compensation Panel 06/13/97
Hamblen County Board of Education v. Michael Jinks
03S01-9708-CH-00094
Authoring Judge: Special Judge Joe. Loser, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson

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 50-6-225(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 finding that the battering of a school teacher in a school corridor by a student arose out of and in the course of the teacher's employment. The appellee insists the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed, but declines to award damages for a frivolous appeal.

Knox County Workers Compensation Panel 06/03/97
Rainey v. Oak Ridge
03S01-9607-CV-00077
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. James B. Scott, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff alleged that on February 15, 1994, during the course of his employment as a janitor, he suffered a lumbar strain while lifting a trash barrel which resulted in permanent, partial disability. As the case unfolded it developed that the plaintiff had a job-related injury in 1979, requiring surgery, for which he received an award for 21.25 percent permanent partial disability. The medical proof established that the 1994 lifting incident aggravated a long- standing disc problem to the extent of causing some nerve irritation but no anatomical changes. The treating orthopedic physician, Dr. Fred Killeffer, testified that the plaintiff had a four percent impairment attributable to the 1994 accident, but opined that he should not continue to work as a painter or custodian. The defendant offered the plaintiff continued employment at the same wages, with an accommodation for the restrictions recommended by his physician. The plaintiff testified that he attempted to work but could not do so within the lifting restrictions. The trial judge found that the plaintiff was unable to return to his former employment and awarded him "six times his aggravation of a pre-existing condition which is 24 percent to the body as a whole." We assume this finding is intended to mean six times the impairment of four percent attributable to the 1994 injury. The plaintiff appeals, insisting that his entitlement should not have been limited to six times his impairment because he met three of the four criteria set forth in Tenn. Code Ann. _ 5-6-242 and thus should have been awarded a greater degree of disability. Pursuant to the provisions of Tenn. Code Ann. _ 5-6-242, a trial court may award an employee permanent partial disability benefits in excess of the maximum disability allowed by applying the multiplier but not to exceed 4 weeks. In such cases, there must be clear and convincing evidence to support at least three of the following four criteria: 2
Knox County Workers Compensation Panel 06/01/97
Lowe v. Jefferson
03S01-9605-CV-00060
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Ben W. Hooper Ii,
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 been perfected by the employer, Jefferson City Zinc, later identified by stipulation as Savage, Inc., from a ruling by the trial court that the employee, Walter P. Lowe, was totally and permanently disabled as a result of a work-related accident which occurred on October 22, 1992. On appeal there are only two issues. First, the employer questions the trial court's determination of total disability and ordering benefits payable under T.C.A. _ 5-6-27(4) until the employee becomes sixty-five years of age. In the second issue, the employer contends the court was in error in apportioning the award of benefits under T.C.A. _ 5-6-28(a) causing the employer to be liable for 65% of the award and the state Second Injury Fund to be liable for 35% of the award. As to the first question, the employer concedes employee Lowe is totally disabled but argues the award should not be fixed at 1% disability because the medical impairment does not exceed 12% for the last injury and that T.C.A. _ 5-6- 241 limits disability awards to six times the medical impairment, which would be a 72% award. In support of this reasoning, it also contends employee Lowe meets three out of the four factors set out in T.C.A.. _ 5-6-242 and, therefore, the award of benefits would be payable for a period of four hundred weeks. The trial court heard conflicting evidence from several expert medical witnesses. All of this testimony was by deposition. Dr. Robert E. Finelli, a neurosurgeon who had treated the employee for the last injury and several prior injuries, gave a 12% medical impairment for the last injury. Dr. Mark McQuain testified to a 11% impairment. Dr. W illiam E. Kennedy, an orthopedic surgeon, gave a 2% impairment. In addition to this evidence, the court heard testimony from Dr. Kelley W alker, a psychiatrist, who was of the opinion the employee was suffering from a depressive disorder due to his last injury. She assessed his permanent disability as a Class 3, Moderate Impairment, which means his impairment level is compatible with some but not all useful functioning. She told the court the Third and Fourth Editions of AMA 2
Knox County Workers Compensation Panel 06/01/97
Harris v. Burlington
03S01-9606-CV-00069
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Richard G. Johnson
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 appellant recognizes the established rule in this State that a second injury is not compensable unless there is evidence of an anatomical change, Cunningham v. Goodyear, 841 S.W .2d 888 (Tenn. 1991), but insists the rule should not have been applied in this case. The plaintiff alleged and testified that he injured his back on January 4, 1994 while lifting a heavy object during the course of his employment. He had injured his back in 1991, and was treated by chiropractic, but did not pursue a claim for benefits. Between 1991 and 1994 he denied a re-injury, but testified to a number of "flare-ups." The plaintiff insists that he suffered an aggravation of the 1991 injury and that he is entitled to benefits accordingly. Following the January 4, 1994 injury, he sought chiropractic treatment again, and was referred to Dr. Stephen Natelson, a neurosurgeon, who performed a hemilaminectomy. The plaintiff represented to Dr. Natelson that he had no previous back problems. He was initially seen by Dr. Natelson on November 14, 1994. The corrective surgery was performed on January 1, 1995. On January 5, 1994, the day after the plaintiff allegedly injured his back, he was seen by Dr. John L. Holbrook, an orthopedic surgeon, to whom he related a lengthy history of back problems. A comprehensive examination was made resulting in a final diagnosis of degenerative disc disease. He was seen again on May 24, 1994, complaining of back pain, and another examination resulted in the same findings as before. During all this time the plaintiff was also being treated by chiropractic. Dr. Holbrook testified that there were no anatomical changes in the plaintiff's lumbar spine between 1991 and 1994; i.e., that the plaintiff had not suffered a re-injury as claimed. Our review is de novo on the record, accompanied by a presumption of correctness of the findings of fact of the trial court unless the preponderance of 2
Washington County Workers Compensation Panel 06/01/97
Jantice L. West v. Nashville Tent & Awning Company, Inc. and General Accident Insurance Company
01S01-9501-CH-00008
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Irvin H. Kilcrease,
This case is before the Court upon a motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion affirming the dismissal of the plaintiff's claim for workers' compensation benefits on the grounds that it was untimely under the statute of limitations.
Davidson County Workers Compensation Panel 05/30/97
Williams v. Sweetwater
03S01-9607-CH-00084
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. Plaintiff alleged a work-related aggravation of a pre-existing non-work-related back condition. She alleged that medical expenses and temporary total disability benefits had been paid by the employer but sought permanent partial disability, future medical expenses and discretionary costs. The trial court found that the temporary aggravation of her back condition had resolved with no permanent impairment and awarded no future benefits. We affirm the judgment of the trial court. Plaintiff, a registered nurse, injured her back at home in June, 1992. Dr. David Hauge, orthopedic surgeon, performed lumbar disk surgery at L4-L5 on November 19, 1992 and returned plaintiff to work the following January with lifting restrictions. Plaintiff alleged that on January 25, 1993, she re-injured her back while lifting a patient at work. Dr. Hauge placed her on temporary total disability for three weeks and treated her conservatively, after which she returned to work again. Dr. Hauge opined that 2 percent of patients who have disk surgery experience recurrent herniations of the same disk. There are various causes of such recurrences, some related to the surgery itself and some which are due to just normal activity. He could not state within reasonable medical certainty whether or not plaintiff's recurrent herniation was work-related. Dr. Hauge opined that the original, non-work-related injury resulted in eleven percent permanent partial disability to the body as a whole: "I would state that the 11% impairment to the body . . . is a result of the injury she sustained in June, 1992 and her subsequent surgery. The percentage impairment this patient has did not change as a result of the January, 1993 incident, although it certainly can be argued that she was much more likely to have an aggravation requiring medical treatment because of the existence of this previous problem." Our review of the findings of fact made by the trial court is de novo upon the 2
Knox County Workers Compensation Panel 05/29/97
Stewart v. City of Johnson City
03S01-9606-CH-00066
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. GERALD JOHNSON
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.
Stewart County Workers Compensation Panel 05/28/97
Herchel Seagraves v. Plaza Machine and Tool
02S01-9612-CH-00104
Authoring Judge: Don R. Ash, Special Judge
Trial Court Judge: Chancellor
Gibson County Workers Compensation Panel 05/23/97
Ricky Mcfarland v. Champion Home Builders
02S01-9702-CV-00011
Authoring Judge: Don R. Ash, Special Judge
Trial Court Judge:
Henry County Workers Compensation Panel 05/23/97
Yasuda Fire & Marine Insurance Co. v. Francine Kuntz
01S01-9609-CH-00187
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Irvin H. Kilcrease, 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. This appeal presents us with an issue involving venue in a workers' compensation case. As discussed below, the panel concludes the judgment of the trial court, dismissing the case for improper venue, should be affirmed. The employer's insurer, Yasuda, commenced this action in Davidson County where, according to the complaint, its principal place of business is located. The employee moved, without supporting affidavits, to dismiss for improper venue. The trial court granted the motion without an evidential hearing.1 The relevant facts are undisputed. The employee is a resident of Robertson County; the corporate employer has its principal office in Sumner County, where the injury occurred; and the employer's insurer has its principal office in Davidson County. The trial judge dismissed the complaint for improper venue because, according to the employee's brief, the employee "may not have a different residence than (sic) the employer for the purpose of determining proper venue under the Workers' Compensation Law of Tennessee." Appellate review is de novo upon the record of the trial court. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). In a significant number of past cases, our Supreme Court held that a workers' compensation action was a transitory one and that venue was to be determined by considering both the provision of the Workers' Compensation Act with respect to venue and the general rules relating to transitory actions. Those cases were overturned by that court's opinion in Five Star Express, Inc. v Davis, 866 S.W.2d 944 (Tenn. 1993), wherein it said in conclusion, ".... we now hold that venue in workers' compensation actions is to be determined solely by the workers' compensation venue statute -- section 5-6-225(c)(1) -- and any other authority indicating otherwise is hereby expressly overruled." The section provides as follows: (c)(1) The party filing the petition may, at such party's option, instead of filing the same before the county judge or chair, file the same as an original petition in either the circuit, criminal or chancery 1 The employee has filed a separate action for benefits in Robertson County. 2
Davidson County Workers Compensation Panel 05/21/97
Randy Pertuset v. Pargo's, Inc.
01S01-9609-CH-00189
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Irvin H. Kilcrease, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court dismissed the plaintiff's petition for workers' compensation benefits. The plaintiff raises the following issues: I. The trial court erred in finding that the altercation between the plaintiff and Thomas Wilson, a co-employee, was not an "accident" sufficient to justify an award of workers' compensation benefits. II. The trial court erred in finding that the medical evidence was insufficient to justify an award based on a mental or nervous disorder. We affirm the judgment of the trial court. The plaintiff in the case was employed as a supervisor at Pargo's, Inc., a restaurant. On January 27, 1994, during the lunch hour, the plaintiff became involved in an exchange with a cook over an order. The evidence shows the plaintiff entered the kitchen to reprimand the cook. The plaintiff pointed his finger at the cook's face as he spoke to him. There is a dispute between the plaintiff and the other witnesses about what then occurred. The plaintiff testified the cook struck him on the neck with his arm, and that he fell to the floor as a result of the blow. The plaintiff was the only witness to give this history of the confrontation. The other witnesses testified the cook placed his hand on the plaintiff's face and pushed him away. All of these witnesses testified the plaintiff did not fall. The day following the incident, the plaintiff became emotionally upset and had to leave work. Basically, the plaintiff was never successfully employed after this time because his mental condition seemed to deteriorate. The Chancellor's memorandum stated in its most pertinent part as follows: The Court finds that the altercation on January 27, 1994 between the plaintiff and Mr. Wilson did not amount to an "accident" sufficient to justify an award. While the plaintiff claims that the plaintiff assaulted him with such force sufficient to cause him to fall to the floor and suffer from neck stiffness, evidence in the record and testimony at trial do not support such a conclusion. Testimony at trial by co-workers who witnessed the altercation reports that the plaintiff began the altercation by verbally 2
Davidson County Workers Compensation Panel 05/21/97
Brenda Durham Konyndyk v. Eagle Displays, Inc.
01S01-9609-CH-00188
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. John W. Rollins,
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 appeals the trial court's finding that she did not retain any permanent partial disability as a result of her work-related injury. We affirm the trial court's judgment. On July 24, 1993, plaintiff was hit by a forklift from behind while she was squatting to take plastic wrap off supplies for the work she was performing. She injured her left shoulder when she fell as a result of this accident. She continued to work after her injury except for a few breaks to rest her shoulder, either at her doctor's request or her own, until March 31, 1995, when she voluntarily quit or retired. She testified that she quit because of her continued shoulder pain, but it is not clear from the transcript whether she gave this reason to her employer. She testified that she continues to experience pain in her shoulder which limits her ability to reach, especially overhead, and lift. She testified that she has difficulty cleaning showers and overhead cabinets, working in her garden and swimming. Plaintiff has mostly received her treatment from her family practitioner, Dr. J. Richard Thomasson. He diagnosed tendinitis of the left shoulder. He also diagnosed tenosynovitis in her right thumb after it began to bother her in the late fall of November 1994; however, he could not testify with any certainty as to the cause of her right thumb tenosynovitis. He opined that she had a medical impairment rating of 27% to the whole body, which he broke down to 7% whole body impairment due to her left shoulder tendinitis and 22% whole body impairment due to her right thumb tenosynovitis. Dr. Thomason testified the plaintiff's thumb problem was due either to overuse or trauma. Dr. Thomason's testimony was uncertain and not persuasive in establishing plaintiff's disability, if any, from her work-related injury. Plaintiff was also evaluated by three orthopedic surgeons. Dr. Robert E. Stein ordered an MRI, which showed mild degenerative disc disease from the C5 through the C7 disks, but was within normal limits. He opined that it was "an MRI that would be 2
Knox County Workers Compensation Panel 05/21/97