Workers Compensation Panel Opinions

Format: 09/16/2014
Format: 09/16/2014
Gwendolyn Chesney v. Knoxville Glove Co. and Cigna Insurance Co.,
03S01-9602-CV-00014
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Wheeler Rosenbalm,
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 contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on twenty-five percent to the body as a whole and in favor of a higher award. As discussed below, the panel has concluded the award should be modified to provide for benefits based on fifty percent to the body as a whole. The employee or claimant, Chesney, is fifty-six years old and has a tenth grade education, with no skills. After working for Knoxville Glove Company for nearly twenty-seven years sewing, piecing, patching and hemming gloves, she developed disabling pain in her neck and right arm. She was referred to an orthopedist, Dr. Burns, who diagnosed cervical strain and radiculopathy caused or aggravated by work and superimposed on pre-existing cervical disc disease. He also ordered nerve testing which revealed right carpal tunnel syndrome. Carpal tunnel surgery was performed but failed to relieve her symptoms. Disc surgery was performed on her neck. The doctor assigned a permanent impairment rating of ten percent to the whole body from the cervical injury and an additional ten percent to the upper extremity from the carpal tunnel syndrome. The claimant is permanently restricted from any work requiring repetitive use of the hands and arms or heavy lifting. A vocational expert estimated her vocational disability at eighty to ninety percent. 2
Knox County Workers Compensation Panel 03/04/97
Wilbur E. Cagle v. Mike Underwood Builders Inc. and Mike Underwood
03S01-9605-CV-00057
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dale 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Underwood, contends the evidence preponderates against the trial court's findings that (1) the employee's injury was one arising out of and in the course of employment, (2) the employer had actual notice of the injury, and (3) the employee retains a forty percent permanent partial disability to the right leg from a torn meniscus. The panel has concluded the judgment should be affirmed. The employee or claimant, Cagle, is forty-eight years old and has a ninth grade education. He has worked primarily in construction and as a machine operator in a factory. His duties with Underwood include performing repairs on new houses during the first year after they are sold, but not home maintenance. His normal working hours are from 8:3 a.m. until 4:3 p.m., but he often works later. He is paid a salary rather than wages. On September 29, 1993, Underwood left the work site at 4: p.m., instructing the claimant to "lock up" when he left. The claimant went to one of the houses to check mortar joints and, as he was about to leave, Suzanne Chandler, who had purchased one of the employer's houses in April of the same year, asked to borrow some WD-4. Although it was after normal hours, the claimant offered to spray Ms. Chandler's squeaky door. While doing so, Cagle slipped and fell, injuring his knee. He had to call his wife to come and drive him home. Two months earlier, the claimant had slipped and slightly injured his knee while performing a repair at the Chandler home, but the injury was so slight that he did not lose time or require medical attention. He did not report that occurrence. The record is clear that the employer had actual knowledge of the accident which is the basis of this workers' compensation claim. The treating physician, an orthopedic surgeon, diagnosed a complex bucket handle tear of the lateral meniscus and probable exacerbation of pre-existing arthritic disease, caused by the occurrence of September 29th. 2
Knox County Workers Compensation Panel 03/04/97
Bobby L. Marlowe v. Vulcan Materials Co.
03S01-9605-CH-00058
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Billy Joe White,
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 plaintiff, Bobby L. Marlowe, was entitled to 1% disability benefits due to contracting an occupational disease while in the employment of his employer, defendant Vulcan Materials Company. Defendant Vulcan contends the Chancellor was in error (1) in ruling the statute of limitations had not expired; (2) in finding plaintiff had been exposed and injured while in its employment; and (3) in finding plaintiff was totally disabled. Plaintiff was 55 years of age and had completed the 9th grade. He has a long history of having worked under conditions exposing himself to smoke, dust, etc. He spent about 16 years working in a steel foundry; about 1 years working for various coal companies; and about 5 years with Vulcan at various quarry sites where his exposure was to rock dust. When he first reported to work with Vulcan in 1988, he had a chest x-ray which apparently was not indicative of any problems. He began having some breathing problems sometime in 1991 and was x-rayed. As a result of this examination, he received a form letter dated January 13, 1992 from a medical clinic in Birmingham, Alabama. This informed him that his x-ray showed "abnormalities consistent with pneumoconiosis" and advised he needed to see a physician. Vulcan sent him to see a specialist in Kingsport, telling him the x- ray indicated something was wrong. There is no direct evidence as to the findings by this doctor. Plaintiff continued to work, saying he did not know what was wrong. Sometime later in his employment, he told the court, his condition began to worsen. He described this as noticing a greater shortness of breath and said any exertion would result in his being completely out of breath. Mr. Howell, the safety director of Vulcan, discussed the situation with him and said they would try to work with him and keep him out of as much dust as possible. At some later 2
Knox County Workers Compensation Panel 02/27/97
Hubert M. Hurd v. General Shale Products Corporation, et al.
03S01-9603-CH-00026
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. H. David Cate,
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. Defendants, General Shale Products Corporation and CNA Insurance Compa ny, have appealed from the action of the trial court in awarding plaintiff, Hubert M. Hurd, 3% permanent partial disability benefits to the body as a whole. The only issue on appeal is whether the evidence preponderates against the award of benefits. Plaintiff Hurd was injured in the course and scope of his employment on August 2, 199, while manually rolling up a truck cover. The equipment did not work properly, and plaintiff was pushing with his right arm when he tore a biceps tendon. Plaintiff was 63 years of age at the time of the trial. He completed the 8th grade and later received a G.E.D. certificate. He had been employed by General Shale for 41 years and at the time of the accident was operating a dump truck. During his entire employment, he had worked at different positions such as a grinding machine operator, a brick machine operator, a fireman on the kiln, a forklift operator and a front-end loader operator. He continued to work after the accident at the same job as his employer installed an electric motor on the vehicle which would roll up the truck cover and eliminate the manual operation. Although he has continued to work, he told the court he does not have the strength in his arm and shoulder as prior to this injury; he testified his grip in his arm is now weak and when he carries anything, it is hard to straighten his arm back out. Dr. John Bell, an orthopaedic surgeon, treated plaintiff for his injuries. His testimony, which was by deposition, indicated plaintiff had sustained an injury to his arm and shoulder from the tear of the tendon and a neck injury where there was an aggravation of a previous condition due to degenerative changes. He 2
Knox County Workers Compensation Panel 02/27/97
Lumbermen's Mutual Casualty Company, Plaintiff/Appellant, v. Yolanda Guerrero,
01S01-9602-CH-00041
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon. Robert S. Brandt,
Davidson County Workers Compensation Panel 02/26/97
Gloria C. Perkins v. Whirlpool Corp., et al.
01S01-9603-CH-00053
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon.
Rutherford County Workers Compensation Panel 02/26/97
Lumbermen's Mutual Casualty Company v. Yolanda Guerrero
01S01-9602-CH-00041
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: HON. ROBERT S. BRANDT
This appeal from the judgment of the trial court in a workers' compensation case has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Davidson County Workers Compensation Panel 02/26/97
Wilma Uselton v. Conwood Company, Lp
02S01-9607-CV-00070
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. George H. Brown, Jr.
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. On appeal plaintiff contends the trial court erred in dismissing her complaint for benefits based on a prior settlement when the medical proof evidenced that she sustained a separate compensable injury.
Shelby County Workers Compensation Panel 02/25/97
Timothy Woody v. North Brothers, Inc.
E2001-00521-WC-R3-CV
Authoring Judge: W. Neil Thomas, III
Trial Court Judge: Jerri Bryant, Chancellor
The first issue presented by this appeal is whether there is evidence to support a finding of permanent impairment of pulmonary function as a result of the migration to the lung of an embolus from a clot created as a result of an injury to the plaintiff's lower extremity. If there is such evidence, the next issue is whether there can be a disability rating to the body as a whole where there is an injury to a scheduled member. After a close review of the record and consideration of the arguments of counsel, we believe that the evidence supports only a finding of a possible future injury to the lung from another embolus from the clot, rather than a present permanent injury. Accordingly, we reverse and remand for further findings. Because of the conclusion on the first issue, we do not reach the second.The first issue presented by this appeal is whether there is evidence to support a finding of permanent impairment of pulmonary function as a result of the migration to the lung of an embolus from a clot created as a result of an injury to the plaintiff's lower extremity. If there is such evidence, the next issue is whether there can be a disability rating to the body as a whole where there is an injury to a scheduled member. After a close review of the record and consideration of the arguments of counsel, we believe that the evidence supports only a finding of a possible future injury to the lung from another embolus from the clot, rather than a present permanent injury. Accordingly, we reverse and remand for further findings. Because of the conclusion on the first issue, we do not reach the second.
Knox County Workers Compensation Panel 02/25/97
Angela Thurman v. Cna Ins. Co., et al.
01S01-9605-CH-00089
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon.
Wilson County Workers Compensation Panel 02/21/97
James W. Smith v. Wilson County Concrete Co., et al.
01S01-9604-CR-00073
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon.
Smith County Workers Compensation Panel 02/21/97
Douglas W. Taylor v. Bgl Mining Co., Inc., et al.
01S01-9604-CH-00066
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. Jeffrey F. Stewart,
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. The fundamental issue in this case is whether an injury on the way from work occurring on a road neither owned nor maintained by the employer, but which is the only available route from the work place, was an injury "arising out of and in the course of employment." Tenn. Code Ann. _ 5-6-12(a)(4). We conclude that it is not and affirm the trial court's summary judgment for the employer. Tennessee Consolidated Coal Company (TCC) uses independent contractors to mine coal on its 35, Cumberland Plateau acres by leasing individual mines to individual operators. The plaintiff's employer, BGL Mining Company, leased mine 34, and mined TCC's coal for which TCC paid BGL a per- ton fee. TCC hauled the coal away from mine 34 and other mines on a haul road TCC built and maintained along the Marion-Sequatchie county line. The haul road was the only way to get to and from mine 34. The private road leads from a county road a short distance from the county road's intersection with Tennessee Highway 18. TCC's haul roads are strictly private roads, and TCC limits access to them. Victoria Arlene Anderson did not have permission to use TCC's haul road on the afternoon of March 11, 1992, but she drove her Dodge pick-up on it anyway and collided head-on with the plaintiff's car as he was driving from his work at mine 34. The severely injured plaintiff was air-lifted to Chattanooga's Erlanger Medical Center. -2-
Marion County Workers Compensation Panel 02/21/97
James W. Smith v. Wilson County Concrete Co., et al.
01S01-9604-CR-00073
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon.
Smith County Workers Compensation Panel 02/21/97
Peggy J. Skaggs v. Preferred Risk Mutual Insurance Company
03S01-9603-CV-00029
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Ben K. Wexler,
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's insurer contends the evidence preponderates against the trial court's finding that the employee's fatal heart attack arose out of his employment. As discussed below, the panel has concluded the judgment should be affirmed. The claimant, Peggy Skaggs, is the widow of Charles R. Skaggs, deceased. At the time of his death, Mr. Skaggs was employed by the First Baptist Church of Morristown as Maintenance Supervisor. On August 8, 1994, following several hours of manual labor at the church, he developed severe neck pain and numbness and tingling in his hands and arms. Mrs. Skaggs, also a church employee, called an ambulance. He was taken to Ft. Sanders Hospital, where he died on August 1, 1994. According to the Death Certificate, death was caused by (1) heart attack, (2) coronary artery disease and (3) sudden cardiac death. The cause of the heart attack was confirmed by a medical doctor, who testified by deposition, "I believe the activity (he) engaged (in) may indeed have precipitated the onset of his myocardial infarction." The doctor conceded on cross-examination that undiagnosed pre-existing coronary artery disease may have been a contributing cause. The trial judge found the employee's heart attack to have been caused by physical exertion at work, thus compensable. 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). A heart attack is compensable, as an accidental injury, if it can be shown by competent evidence that the attack was precipitated by physical exertion or stress at work. Downen v. Allstate Ins. Co., 811 S.W.2d 523 (Tenn. 1991). The key, it has been held, to the recovery or denial of benefits is whether the heart attack is precipitated by the physical activity and exertion of the employee's work. Wingert v. Government of Sumner County, 98 S.W.2d 921 (Tenn. 1995). Moreover, an employee's death or disability resulting from a heart attack is causally related to his employment and therefore compensable, 2
Hamblen County Workers Compensation Panel 02/21/97