Workers Compensation Panel Opinions

Format: 11/23/2017
Format: 11/23/2017
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
Carol A. Hilliard v. Tn. State Home Health Services, et al.
01S01-9609-CH-00193
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Robert E. Burch,
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 contends, in this appeal, that there is a genuine issue of material fact concerning causation and that the summary judgment of dismissal should be reversed. As discussed below, the panel has concluded the case should be remanded for trial. In 1971 and 1972, the claimant underwent gallbladder surgery and a hysterectomy. In conjunction therewith, she was given two blood transfusions. Over the next several years, she carried on a normal life and exhibited no more than normal health problems. However, in 1988, the claimant visited a doctor complaining of extreme fatigue, a symptom of hepatitis C. In 1989, she visited a doctor who noted she had an enlarged liver, also a symptom of hepatitis C. By 1992, the claimant's fatigue had become worse and she experienced a series of colds and viruses. She was again diagnosed with an enlarged liver, and hepatitis C was diagnosed for the first time. She has seen several doctors, including Dr. Ellen B. Hunter, whose deposition was filed in support of the defendants' motion for summary judgment. Dr. Hunter testified that hepatitis C sufferers often remain asymptomatic for many years. The claimant testified that the signs of the disease began after she started working for the employer providing nursing care for medical patients. She said she never had any major health problems before that, a circumstance confirmed by her family doctor in his affidavit. Dr. Hunter testified the condition could have been caused by the above transfusions or by working with patients having hepatitis C. She confirmed that a health care worker such as the claimant "is at risk for acquiring hepatitis C." The trial court granted a summary judgment of dismissal. Appellate review is controlled by Tenn. R. Civ. P. 56. Downen v. Allstate Ins. Co., 811 S.W.2d 523 (Tenn. 1991). The pleadings and evidence must be viewed in the light most favorable to the opponent of the motion. Wyatt v. Winnebago Indus., Inc., 566 S.W.2d 276 (Tenn. Ct. App. 1977). Summary judgment is to be rendered only when it is shown that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56. It is almost never an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445 (Tenn. 1991). In a summary judgment hearing, even where the parties have no right to a jury trial, the trial judge is not at liberty to weigh the evidence. 2
Stewart County Workers Compensation Panel 05/21/97
Kay E. Blackwood, Jr. v. The Berkline Corp., et al.
01S01-9609-CV-00190
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. John A. Turnbull,
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 appellants contend (1) the award of permanent partial disability benefits is excessive, (2) it was error for the trial judge to become a witness in the case and (3) the trial judge abused his discretion by commuting permanent partial benefits to a lump sum. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified and, as modified, paid in a lump sum, and the evidential remarks of the trial judge were harmless in light of our modification. The claimant, Kay Eugene Blackwood, Jr., is thirty-nine years old with a high school education and vocational training as an automobile mechanic and some college training as a minister of the gospel. He gradually developed bilateral carpal tunnel syndrome from the repetitive use of his hands at work for employer, Berkline. The employer referred him to Dr. James B. Talmage. The doctor diagnosed bilateral carpal tunnel syndrome and prescribed braces for both wrists. He restricted the claimant from repetitive work with his right hand and recommended wearing the braces while sleeping. The claimant was totally disabled for several weeks. The doctor assigned zero percent permanent impairment, but acknowledged some loss of grip strength and conceded that, on the basis of lost grip strength, the AMA Guidelines provided twenty percent permanent impairment to the right arm and ten percent to the left, using a method the doctor considered inappropriate. Dr. Talmage did not concede the loss of grip strength was permanent. Dr. Randy Gaw, a neurologist, diagnosed mild right carpal tunnel syndrome but found no evidence of "left median nerve mononeuropathy" or "generalized neuropathic or myopathic process involving the upper extremities." The claimant returned to work for the employer. Dr. S. M. Smith, who did not treat the claimant but evaluated him, diagnosed moderate carpal tunnel syndrome on the right and mild carpal tunnel syndrome on the left. He assigned twenty percent permanent impairment to the right hand and ten percent to the left. The trial court awarded, among other things, permanent partial disability benefits based on fifty percent to each arm, commuted to a lump sum. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Clay County Workers Compensation Panel 05/21/97
Naomi Gentry v. Lumbermens Mutual Co., et al.
01S01-9608-CH-00165
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge:
Smith County Workers Compensation Panel 05/16/97
Michael Siniard v. Saturn Corporation
01S01-9609-CV-00175
Authoring Judge: William H. Inman, 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 plaintiff, age 43, remains employed by Saturn Corporation, where he began in 199. He developed carpal tunnel syndrome in both wrists in 1994 and was provided with splints, medication, and access to physical therapy. In time the plaintiff was referred to Dr. James W iesman, an orthopedic surgeon, who performed a carpal tunnel release on his right hand. He returned to work for Saturn which assigned him a job not involving repetitive use of his hands. The plaintiff filed this complaint seeking benefits for a permanent partial disability occasioned by the asserted impairment caused by the carpal tunnel syndrome. The trial judge awarded benefits based on a finding of ten percent permanent partial disability to his right arm. The plaintiff appeals, insisting the award is inadequate for the reasons hereafter discussed. The treating physician testified that the release surgery was successful and that the plaintiff retained a two (2) percent impairment to his right arm. The plaintiff was referred by his attorney to Dr. David W. Gaw, also an orthopedic surgeon, for evaluation. Dr. Gaw saw the plaintiff only on one occasion. He conducted various tests and concluded that the plaintiff had a ten percent permanent partial impairment to his right arm. He disdained as unauthorized by the AMA Guides an evaluation of two (2) percent impairment as found by Dr. Wiesman. Our review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 584 (Tenn. 1991). The plaintiff criticizes Dr. Wiesman for his alleged failure to use the AMA Guides. While Dr. Wiesman apparently was not enamored by the Guides, he testified that "I used those Guides," and that "I did the impairment rating based on 2
Maury County Workers Compensation Panel 05/16/97
Margaret Ann Scruggs v. National Health Corp.
01S01-9504-CH-00052
Authoring Judge: John Maddux, Special Judge
Trial Court Judge: Hon. Tyrus H. Cobb,
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. For the reasons set forth below, the judgment of the trial court is affirmed. The plaintiff, Margaret Ann Scruggs, injured her neck on December 25, 1991, while employed as a nurse's aid by the defendant, National Healthcorp, L.P., d/b/a/ Merihil Health Care Center, Inc. The plaintiff, was 52 years old at the time of trial. She did not finish the seventh grade. Her employment history consists of working as a private sitter and in various restaurants and factories. She has had training as a nurse's aide. Plaintiff was first treated for her work-related neck injury by Dr.Kenneth J. Phelps. She informed Dr. Phelps that she was experiencing pain from her neck that was radiating down into her left arm causing loss of grip strength in her hand. Dr. Phelps confirmed plaintiff's complaint of pain and loss of grip strength, scheduled physical therapy and imposed lifting restrictions. Dr. Phelps continued to see plaintiff through October, 1992, because she continued to complain of symptoms similar to those she had complained of after the accident. She also indicated she had additional problems such as pain down her back and into her left leg, spasms in her back, difficulty sleeping and panic attacks. From January of 1993 through January of 1994, plaintiff was treated by Dr. Richard Fishbein, an orthopedic surgeon. Dr. Fishbein diagnosed plaintiff as 2
Marshall County Workers Compensation Panel 05/16/97
Franklin Hartsell v. Dallas & Mavis Forwarding Co., et al.
01S01-9608-CH-00164
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Ellen Hobbs Lyle,
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, age 54, suffered a job-related myocardial infarction on March 1, 1994. A coronary arteriogram revealed an 8% blockage of his left anterior descending artery which was alleviated by an angioplasty procedure which reduced the blockage to less than 15%. Conservative treatment followed, and he was released to return to full employment on January 1, 1994. From that day forward, the plaintiff has worked steadily and without incident. In July 1991, the plaintiff was hospitalized with chest pains. A cardiac catheterization was performed, which revealed a serious lesion in his left circumflex coronary artery at the left ventricular ridge, with another lesion in his left anterior descending coronary artery. After the 1994 infarction, the lesion in the left anterior artery was substantially worsened. The employer insists that the award is excessive because it was improperly onerated with liability for impairment resulting from pre-existing coronary artery disease. Liability for benefits resulting from impairment as a consequence of the myocardial infarction is conceded. The dispositive issue at trial was the extent of the plaintiff's partial permanent disability. The Chancellor found that the plaintiff had a 5% permanent partial disability and awarded benef its accordingly. Our review is de novo on the record, accompanied by the presumption that the trial court's judgment is correct unless the evidence preponderates otherwise. T.C.A. _ 5-6-225(e)(2). The treating physician, Dr. K.P. Channabasappa, testified that the plaintiff's impairment was 29%, which may be extrapolated to Category II of the AMA Guidelines. He stated in a pre-deposition letter that "it is 29%" and on direct examination testified that the impairment was 29%. There was no countervailing testimony offered. 2
Franklin County Workers Compensation Panel 05/16/97
Donald Groton, Etc. v. Traverlers Insurance Co.
01S01-9607-CV-00154
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. Bobby Capers,
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. This Court is once again called upon to decide wither an injury sustained en route to work is compensable. We conclude that it is not and reverse the trial court's finding that it is. Regrettably, this case involves more than an injury. Donald Groton died from injuries he sustained in a car wreck while traveling to work on January 14, 1994. He worked for John Coleman Hayes, P.C. an engineering firm under contract with Nashville's airport authority to supervise noise abatement modifications being made to homes in the Antioch and Donelson neighborhoods close to the airport. Groton was one of two inspectors who examined the work of the contractors. He used his own vehicle in his work. The employer paid Groton mileage for driving from the office to job sites and from one job site to another. The employer did not pay Groton for driving from his home to the office or to the first job site of the day if Groton went there first. Likewise, the employer did not pay Groton for travel away from the office or from the last job site at the end of the work day. On the date of the accident, Groton did not report for duty at either the office or a job site as usual. James Michael Smith, John Coleman Hayes's construction manager, called Groton the day before and instructed him to go to a job site of a sister company, John Coleman Hayes Construction Company. Smith needed some surveying work done and Groton knew how to do it. -2-
Wilson County Workers Compensation Panel 05/16/97