Workers Compensation Panel Opinions

Format: 04/18/2015
Format: 04/18/2015
Everlyn Hicks v. Tennessee Dept. of Labor, et al
02S01-9607-CH-00067
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dewey C. Whitenton,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee, Hicks, contends the evidence preponderates against the trial court's finding that she is less than permanently and totally disabled from her work-related accident and that the trial court erred in not applying Tenn. Code Ann. section 5-6-28(a). As discussed below, this panel concludes the trial court should be affirmed in both respects The employee or claimant is sixty-two years old and has an eighth grade education. She has worked for the employer, Harmon Automotive, since 1973. In 1983, she injured her hand at work and received an award of permanent partial disability benefits. Her present claim grows out of a second injury suffered by her on May 6, 1993, when she injured her back while lifting a box of mirror bases. As a result of this injury, she received back surgery and was released to return to light duty work in January of 1994. She did return to work in May of the same year, when light duty work became available. In the same month, she again injured her back. She testified that she is no longer able to work. She has settled with her employer and that settlement is not involved in this appeal. The chancellor found the claimant to be less than permanently and totally disabled and dismissed her claim against the Second Injury Fund. 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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). 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. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). An employee who has previously become disabled from any cause and who, as a result of a later compensable injury, becomes permanently and totally disabled, may receive disability benefits from his or her employer only for the disability that would have resulted from the subsequent injury. Tenn. Code 5-6-28, Cameron v. Kite Painting Co., 86 S.W.2d 41 (Tenn. 1993). However, such employee may be entitled to recover the remainder of the benefits allowable for permanent total disability from the Second Injury Fund. Id. 2
Hardeman County Workers Compensation Panel 04/01/97
United States Fidelity & Guaranty and Paraclesius Healthcare, Inc. v. Holly Scott
01S01-9607-CH-00138
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Vernon Neal,
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. I This action was filed by the employer and its insurer as one for declaratory judgment that "this case needs to be heard by the Court to determine the respective rights of the parties pursuant to the Tennessee W orkers' Compensation Act," since the employee was claiming a back injury sustained while assisting a patient during the course of her employment by Clay County Hospital. The defendant answered and counter-claimed, stating that she attempted to keep a patient from falling from a bed as a result of which she injured her back. The Chancellor found that the accident occurred as alleged, as a result of which the defendant was 7% vocationally disabled and awarded benefits accordingly. The plaintiffs appeal and present for review (1) whether the finding of 7% disability is excessive; (2) whether the multiplier was exceeded, (3) whether a partial lump sum was properly awarded. II The defendant is a 38-year-old licensed practical nurse and a certified nurse's aide. She was assisting a patient at home who rolled from bed and both of them hit the floor. As stated by the employer, the only issues litigated were the extent of permanent partial disability and the requested commutation of the award to a lump sum. She testified that she could no longer perform the duties of an LPN. Dr. Ray Hester, a neurosurgeon, testified that he initially saw the defendant on September 14, 1993. She complained of back pain and he later determined that she had a ruptured disc which surgery would not correct. Weight restrictions were imposed. He opined that she had a 5% impairment for thoracic strain and disc 2
Clay County Workers Compensation Panel 03/24/97
James K. Ringrose v. Saturn Corp.
01S01-9607-CH-00141
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Donald P. Harris,
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 sustained deQuervain's disease, an inflammatory condition which first manifested itself in November, 1992, while doing repetitive factory work for defendant. The trial court awarded 1 percent permanent partial disability to the right upper extremity for his right wrist injury. The plaintiff also developed an impingement injury to his right shoulder in August 1993. The trial court awarded 1 percent permanent partial disability to the body as a whole for this injury. We affirm the judgment of the trial court. Plaintiff first reported severe pain in his right wrist to the medical department of the employer on November 9, 1992. He was given an over-the-counter anti- inflammatory medication and a wrist splint. He went back to work. He returned to the medical department on January 28, 1993 with continuing complaints of pain. He was given a wrist splint and placed on work restrictions. Soon thereafter, the employer referred plaintiff to Franklin Bone and Joint Clinic, where he was given a corticosteroid injection in his right hand. He was told to wear a thumb splint and to temporarily avoid gripping with his right hand. On August 26, 1993 Plaintiff sustained an injury to his right shoulder, while pushing and pulling auto doors. The employer's medical department provided pain medication, ice packs and on-site physical therapy, then referred him to Dr. Jeffrey Cook, a board-certified orthopedic surgeon. Dr. Cook treated plaintiff from November 18, 1993 until April 11, 1995. He surgically removed the end of plaintiff's collar bone, bone spurs and scar tissue. On April 11, 1995, plaintiff told Dr. Cook that he was transferring to a position which would not require repetitive motion. Dr. Cook assessed no permanent disability, although he also opined that Dr. Gaw had seen plaintiff more recently, and therefore if Dr. Gaw thought plaintiff had 5 percent disability he would not disagree. 2
Williamson County Workers Compensation Panel 03/24/97
Thomas Hickman v. Liberty Mutual Insurance Co.
01S01-9606-CV-00117
Authoring Judge: John K. Byers, Senior 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff injured his back on April 29, 1994 while repairing a forklift truck for the employer, Richland, Incorporated. The trial judge awarded him 12-1/2 percent permanent partial disability. He appeals, asserting that the amount of disability should not have been based on the medical report of the first treating physician and that the two and one-half multiplier cap in TENN. CODE ANN. _ 5-6-241 should not have been applied under the facts of this case. We affirm the judgment of the trial court. Plaintiff sustained injury to his back on April 29, 1994 while lifting a cylinder head from a forklift truck. Medical records of Dr. Vaughan Allen, designated as Exhibit 1 to the Deposition of Dr. Earl M. Jeffres, indicate that plaintiff was first treated by Dr. Charles D. Haney, who prescribed medications and rest. When plaintiff did not improve, he was referred by the employer to Dr. Allen. In May of 1995 he was sent by his attorney to Dr. Earl M. Jeffres. The plaintiff first raises the issue that: "The trial court erred in basing its decision on the written report of a non-testifying physician [Dr. Allen] and rejecting the testimony of the only medical expert [Dr. Jeffres]." Dr. Allen's treatment records of May 24, 1994 and May 27, 1994 revealed that plaintiff had a loss of range of motion of his low back, muscle spasm and a straight leg raise test that was positive for lumbar injury. X-ray revealed a central disc protrusion. Plaintiff was taken off work and placed on physical therapy for four weeks. On June 28, 1994, plaintiff returned to Dr. Allen, stating that he was "better but not well." He told Dr. Allen that there was "absolutely no light duty and that he works at very heavy machines . . . " In light of this assertion by the patient, Dr. Allen advised him to continue the chronic exercise program and return for a re-check in two months. Allen further opined that "Certainly, if there is light duty he could start 2
Hickman County Workers Compensation Panel 03/24/97
Equity Group, Tennessee v. Sherri Leslie
01S01-9606-CH-00125
Authoring Judge: William H. Inman, Senior 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issue is whether the trial court erred in awarding the plaintiff benefits for a disability to her right leg. The plaintiff alleged and the court found that she injured her left knee on July 22, 1993 resulting in disability for which benefits were awarded, not here questioned. Nine months later, in April, 1994, she alleged that during the course of her employment her left knee collapsed, causing her to fall on her right knee resulting in a disabling injury. In the course of time she sought benefits for disability to both knees. The trial court found that both injuries were compensable, and awarded benefits based on 55 percent disability to the left knee and 4 percent to the right knee. The employer argues that the evidence falls short of proving that the plaintiff suffered an injury by accident to her right knee, and that the court's reliance on the testimony of Dr. Roy C. Terry was misplaced because he was not credibly informed. Dr. Terry testified that the right knee injury "could be" related to the July, 1993 injury. From this testimony the defendant extrapolates the argument that Dr. Terry assumed both knee problems arose in 1993, contrary to the testimony of the plaintiff that she injured her right knee in 1994. The argument continues that "could be" testimony alone is not sufficient; that there must be, at least, corroborating lay testimony. This is a correct legal assertion. See Livingston v. Shelby Williams, 811 S.W.2d 511 (Tenn. 1991). But there is corroborative lay testimony in this record. As stated above, the plaintiff testified that her left knee collapsed, causing her to fall on her right knee. It is true that she gave confusing, perhaps conflicting accounts of the episode, but the Chancellor, and not us, is the arbiter of her credibility, and of the weight to be accorded her testimony. See Walls v. Magnolia Truck Lines, 622 S.W.2d 526, 528 (Tenn. 1981). 2
Davidson County Workers Compensation Panel 03/24/97
Guy Brewer v. City of Waynesboro
01S01-9607-CV-00150
Authoring Judge: John K. Byers, Senior 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee appeals from the trial court's dismissal of his complaint for workers' compensation benefits for lack of notice. We affirm the judgment of the trial court. Plaintiff testified that he injured his back on May 6, 1993, while unloading 5- pound bags of chemicals in the course of his employment as water plant operator for the City of Waynesboro. He testified that his back began to hurt that evening and then continued to get worse. He testified that he informed Flora Locker, the city recorder, and Howard Riley, public works director, that he had hurt his back at work within two weeks of his injury. He further testified that Riley provided him with someone to assist him with lifting about two weeks after his May 6, 1993 injury. Flora Locker testified that the plaintiff told her he hurt his back lifting bags of chemicals, but she was uncertain when he told her except that it was before his July 14, 1993 fall. She testified that she did not make a report of it because it was more than ten days after the accident, which was the time limit she had been told for reporting accidents; however, she also testified that he never told her when he had hurt his back. Howard Riley denied ever having received notice from the plaintiff. A co- worker, David Maples, testified that Steve Colley, the city manager, told him about two weeks after May 6, 1993, to make sure that plaintiff did not have to do any lifting at work because plaintiff was having problems with his back. Plaintiff first went to Dr. J.V. Mangubat, a general practitioner and surgeon, for treatment. Dr. Mangubat testified by deposition that plaintiff first complained of pain in his left hip radiating down his left leg in April 1993, which he attributed to arthritis. He saw plaintiff again on May 6, 1993 to remove sutures from a previous in- office excision. Plaintiff did not complain of back or leg pain at the time. Plaintiff returned on June 3, 1993, complaining of pain in both hips radiating down both legs with some 2
Wayne County Workers Compensation Panel 03/24/97
Willie Banks v. Meridan Insurance Co.
01S01-9509-CV-00159
Authoring Judge: John K. Byers, Senior 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff reported that he had injured his back on May 4, 1993. The trial judge found the plaintiff had failed to show by a preponderance of the evidence that he had sustained a permanent impairment and dismissed the complaint. We affirm the judgment of the trial court. The undisputed evidence shows the plaintiff suffered from spinal stenosis, a manifestation of the aging process, which is normal for a person of the age of 62, the age of plaintiff. The material evidence consists of the deposition testimony of Dr. Roger Ray, a neurosurgeon, and a CT scan done at Crockett Hospital. Dr. Ray, when asked on direct questioning, testified the plaintiff sustained a ten percent whole body impairment as a result of the alleged back injury. The finding was based upon the testing given to him and upon his evaluation of the plaintiff and review of the CT scan report. On cross-examination, Dr. Ray testified he did not use the 4th Edition of the AMA Guides to determine the disability of the plaintiff, but testified he thought he used the 3rd edition. Dr. Ray's testimony was less than clear on whether he used any edition of the Guidelines. The ultimate outcome of the testimony of Dr. Ray and the finding of the CT scan is that the plaintiff suffered from spinal stenosis, which was not caused by the injury at work. At most, the injury only caused the plaintiff to suffer pain. The plaintiff was released by Dr. Ray to return to work without any limitations. From the record, we find the plaintiff suffered from an underlying condition that was not caused by the employment. At most, the plaintiff has, by his own report, suffered only pain. There is no evidence the employment caused any progression or aggravation of the underlying condition, but only caused pain. This is not compensable. Cunningham v. Goodyear Tire and Rubber Co., 811 S.W.2d 888 (Tenn. 1991). See also Townsend v. State, 826 S.W.2d 434 (Tenn. 1992). 2
Lawrence County Workers Compensation Panel 03/24/97
State of Tennessee v. Jimmy Cullop, Jr.
03C01-9607-CR-00281
Authoring Judge: Gary R. Wade, Judge
Trial Court Judge: Hon. R. Jerry Beck, Judge
The defendant, Jimmy Cullop, Jr., was convicted of possession of contraband while in jail under Tennessee Code Annotated _ 39-16-21. The trial court imposed a Range I, four-year sentence. The sentence was ordered to be served consecutively to his prior sentence.
Sullivan County Workers Compensation Panel 03/18/97
David B. Mase v. Coca-Cola Enterprises, Inc.
03S01-9605-CV-00054
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Dale C. Workman,
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. Defendant, Coca-Cola Enterprises, Inc., has appealed from the trial court's action in awarding plaintiff, David B. Mase, 35% permanent partial disability to the body as a whole. The employer contends the trial court was in error in ruling it liable for the compensable injury as opposed to applying the Last Injury Rule, which would have fixed liability against the employee's last employer. An issue is also raised as to whether the trial court was in error in awarding an amount of disability which was in excess of 2_ times the medical impairment rating. Plaintiff was 3 years of age at the time of the trial and had completed the 12th grade. He testified he was injured while working on October 15, 1993, when he was stacking twelve-pack cartons of drinks at a customer's business; that he experienced pain in his left hip and leg; he was referred by his employer to Dr. Don King, who treated him with medication and therapy; he was released to return to work on November 12, 1993, and returned to the same job at the same rate of pay; he told the trial court he did not feel able to work but attempted to do so anyway. Plaintiff was terminated by defendant on December 2, 1993. There is a conflict in the evidence as to the exact reason for his discharge. Plaintiff testified a supervisor requested that he sign a written statement agreeing he could be terminated if he did not meet certain standards of work; that he told the company official that he would not sign the statement because his physical condition would not permit him to comply with the statements and that he was terminated for failing to execute the statement. The record indicates that during 1992 and 1993 plaintiff had been warned a number of times by his employer that his performance on the job was not satisfactory and that he had been tardy in reporting to work often. 2
Knox County Workers Compensation Panel 03/17/97
Phillip W. Lee v. Shoney's, Inc.
03S01-9606-CH-00067
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Chester S. Rainwater
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 appeal has resulted from a finding by the trial court that Defendant, Charles A. Hixon, was entitled to permanent disability benefits of 17.5% to the body as a whole. The Chancellor was of the opinion the award was limited to 2-1/ 2 times the medical impairment rating of 7% pursuant to T.C.A. _ 5-6-241(a)(1). On appeal the employee has raised numerous issues regarding the limit of the award. It is insisted the court was in error in not applying subsection (b) of the statute, which would fix the limit of the award at 6 times the medical impairment rating; that the court failed to apply subsection (a)(2) which would have permitted an increased award; that the court should have allowed greater benefits pursuant to T.C.A. _ 5-6- 242; that subsection (a)(2) is unconstitutional as it requires an employee to file a new cause of action when the employee may not have received an initial award of benefits prior to the expiration of the one year period of time. The employer, Lea Industries, raises an issue concerning causation of the injury. It is insisted the preponderance of the evidence does not support the trial court's finding the ruptured disc was caused by the incident at work. Employee Hixon is 49 years of age and completed the 9th grade. Most of his work experience has been in the furniture construction industry. On November 6, 1992, he was bending down to pick up some lumber when he felt pain in his back. He was taken to the hospital where he was admitted and stayed for a period of five days. About ten days after being released, he returned to work at the same rate of pay. He told the court he continued to have pain and worked under restrictions of not bending over; and not being on his feet or sitting for long periods of time. He continued like this until July 22, 1993, when he left work saying his physical condition would not permit him to continue. There is no other evidence in the record disputing his reason for leaving his employment. 2
Knox County Workers Compensation Panel 03/17/97
David K. Burnette v. The Travelers Ins. Co.
03S01-9607-CH-00074
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Frederick D. Mcdonald
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, David K. Burnette, was entitled to 1 percent permanent disability benef its as a result of his injury on December 18, 1994. Since he had a prior award of disability, the court apportioned the award by directing his employer, Target Stores, to pay 15 percent and the State's Second Injury Fund to pay the remaining 85 percent. The State has appealed insisting the evidence is not sufficient to support a 1 percent disability award and that the apportionment was not proper under TENN. CODE ANN. _ 5-6-28. We agree with this contention and the trial court's judgment as to the extent of permanent disability is modified as hereinafter indicated. Employee Burnette was 37 years of age and dropped out of school in the 11th grade. He later obtained a G.E.D. certificate and worked as a carpenter in the construction industry for about thirteen years. In 1988, while working in California, he sustained work-related injuries which resulted in an award of workers' compensation benefits of 3 percent to the body as a whole. These injuries were two herniated disks in his neck and two herniated disks in his low back. After recovering from surgical procedures, he moved to Tennessee and worked for some period of time with two different fast food businesses. He was employed as an assistant manager at each company. In September, 1992, he began working at Target Stores testifying he was still having pain from his injuries and that he was still taking pain medication. While working at Target, he attempted to further his education by attending classes at Pellissippi State. He did this for several years, but had transferred to the University of Tennessee by the time the case was heard in the trial court. His goal was to obtain a degree in special education and become a special education teacher. The record is not clear as to his status in this endeavor but he said he was still taking basic courses and had not been accepted in the College of Education. 2
Knox County Workers Compensation Panel 03/14/97
Jerold Seybert v. Ikg Industries, Inc. and Cigna Insurance
01S01-9604-CH-00078
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon. ROBERT S. BRANDT
Davidson County Workers Compensation Panel 03/12/97
Danny E. Wilson v. Calvin Burgess Lumber Company
03S01-9604-CH-00041
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Vernon Neal,
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, Wilson, contends the evidence preponderates against the trial court's finding that his injury did not arise out of the employment. This panel affirms the trial court. The employee or claimant worked for the employer, Burgess, as a log skidder operator. On May 29, 1994, at approximately 12:3 p.m., the claimant lost consciousness and became incontinent. When he regained consciousness, he told his employer he was ill and needed to go home. In his complaint, he claims his condition was caused by a faulty exhaust system on the skidder he was operating. It is undisputed the exhaust system on the skidder he had been operating was faulty. The defective part has since been replaced. The skidder did not have a closed compartment for the operator. Although a toxicologist diagnosed brain damage caused by carbon monoxide poisoning, tests on the skidder produced carbon monoxide readings below the OSHA limit of no more than fifty parts per million for an eight hour exposure. A sample taken at two feet from the end of the exhaust pipe showed thirty parts per million and one taken sitting in the operator's seat, with a slit in the piece of flexible pipe that had a hole in it, showed two parts per million. Moreover, another medical expert opined those levels were insufficient to cause brain damage to an operator in an open seat. Dr. Myron L. Mills, an occupational medicine specialist, further opined the claimant's injury was the result of a non-work-related seizure. The trial judge dismissed the claim for insufficient proof of causation. 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 2
Knox County Workers Compensation Panel 03/04/97