Workers Compensation Panel Opinions

Format: 12/06/2016
Format: 12/06/2016
Dianne B. Fowler v. Liberty Mutual Ins. Co, et al.
01S01-9607-GS-00151
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon.
Warren County Workers Compensation Panel 05/13/97
Clarence Wayne Dunn v. Sequatchie Concrete Services, et al.
01S01-9606-CV-00121
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Lee Russell,
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 is seeking review of the findings of the trial court with respect to the following issues: (1) Whether the employee's claim against it is barred by Tenn Code Ann. section 5-6-23, a one-year statute of limitations1; (2) Whether the claim should be disallowed for the employee's failure to give timely written notice of his claim, as required by Tenn. Code Ann. section 5-6-21; (3) Whether the appellee was an employee of the RDF at the time of the injury; (4) Whether the award of permanent partial disability benefits is excessive; and (5) Whether the trial judge abused his discretion by commuting permanent partial disability benefits to a single lump sum. The employee contends the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Dunn, is thirty-eight years old and has an eighth grade education. He has a commercial driver's license and has worked as a truck driver for some ten years. He gradually developed a ruptured disk in his lower back while driving a truck owned by the employer, RDF Transportation, Inc. After back surgery, he returned briefly to work for the appellant but resigned because the work exceeded his medical limitations. As to issues (1) through (4), this appeal turns on factual determinations. Appellate review is therefore 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.
Wayne County Workers Compensation Panel 05/13/97
Patricia Dunn v. H.D. Lee Co.
01S01-9604-CH-00061
Authoring Judge: Per Curiam
Trial Court Judge: PER CURIAM
This case is before the Court upon 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 setting forth its findings of fact and conclusions of law in dismissing as untimely plaintiff's claim for workers' compensation benefits.
Lincoln County Workers Compensation Panel 05/13/97
Carrier Air Conditioning, et al. v. Henry Maguffin
01S01-9607-CV-00135
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Gerald L. Ewell, Sr.,
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 or claimant, Maguffin, contends the evidence preponderates against the trial court's finding that he did not suffer an injury by accident. The panel has concluded the judgment should be affirmed. The claimant was working for Carrier in August of 1993 when he sprained his wrist while operating an air gun, thereby aggravating a pre- existing fracture, or "non-union of the scaphoid bone." His wrist swelled and he felt immediate pain. He received first aid from the company nurse, but continued to work. Almost a year later, because of continuing complaints of pain, he was referred by the employer to an orthopedic surgeon. The doctor operated and returned the claimant to work with some restrictions. In his deposition, the doctor opined that the injury aggravated the pre-existing condition by increasing pain, but did not create any permanent anatomical change. The surgeon was properly paid by the employer. The trial court found that the claimant had not suffered an injury by accident as contemplated by the Workers' Compensation Act. 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). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment which cause either disablement or death of the employee are compensable. Tenn. Code Ann. section 5-6-12(a)(5). An accidental injury is one which cannot be reasonably anticipated, is unexpected and is precipitated by unusual combinations of fortuitous circumstances. See Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993), and cases cited therein. An employer takes its employee with all pre-existing conditions, and cannot escape liability when the employee, upon suffering a work related injury, incurs disability far greater than if he had not had the pre-existing condition; Rogers v. Shaw, 813 S.W.2d 397 (Tenn. 1991); but if work aggravates a pre-existing condition merely by increasing pain, there is no injury by accident. Townsend v. State, 826 S.W.2d 434 (Tenn. 1992). The undisputed medical proof from the operating surgeon is that this claimant's aggravation of a pre-existing condition merely increased his pain 2
Coffee County Workers Compensation Panel 05/13/97
Transportation Insurance Co., et al. v. Clayton B. Rees
01S01-9606-CV-00123
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. J. Russell Heldman,
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 case presents the question of whether an employee's possession or business use of a portable telephone converts an otherwise noncompensable injury into a compensable one. We conclude that it does not and affirm the trial court's denial of benefits. The employee, Clayton Rees, had been employed by Rock Harbor Marina in Nashville for only four weeks when he was injured while driving to work. He was a commission boat salesman. Rock Harbor paid Rees a draw against future commissions, but at the time of the injury, he had yet to sell a boat for Rock Harbor. Rees lived in Tullahoma, about equal distance between Nashville where he worked and Chattanooga where his fianc_ lived. On the morning of March 12, 1994, while commuting to work from Tullahoma to Nashville in his own truck, Rees was injured in a vehicle collision on US 231 just north of Shelbyville. A drunk driver caused the collision. To be covered by workers' compensation, the injury must arise out of and in the course and scope of employment. Tenn. Code Ann. _ 5-6-13. An injury sustained en route to or from work is not considered in the course of employment. Lollar v. Wal-Mart Stores, Inc. 767 S.W.2d 143, 144 (Tenn. 1989). There are exceptions to this rule, such as when the employee is on the employer's premises, Id. 15, but none of the exceptions apply here. Rees seeks to avoid this firm and long-standing rule because he had a portable telephone with him on his commute and, according to him, was -2-
Davidson County Workers Compensation Panel 04/25/97
Mary W. Scott v. Kenny Pipe & Supply, Inc., et al.
01S01-9607-CV-00140
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. Marietta M. Shipley,
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 only issue raised in this appeal is whether the evidence supports the trial court's award of permanent partial disability. We conclude that it does and affirm the decision. The plaintiff, Mary W. Scott, a then fifty-six-year-old clerical worker, injured herself in September 1992 when she fell because the back of her secretarial chair came off. She came under the care of Dr. Greg Lanford, a neurosurgeon. He hospitalized her for a few days and then treated her conservatively. She returned to work for several months and then left her job, but there is no explanation in the record as to the cause of her termination. Dr. Lanford had treated the plaintiff before for the same condition. In fact, he operated on her back in October 1991 to attempt to repair degenerative changes in discs C3 through C7. Following that surgery, the plaintiff returned to work. The employer's argument is straightforward. The plaintiff's condition was no worse after the fall than it was before the fall. Dr. Lanford found the plaintiff to be in about the same condition after the fall as she was before the fall. When asked to compare the plaintiff's condition on July 3, 1992 - the last time he saw her before her work injury - to her condition on August 3, 1993 - the last time he saw her after the work injury - the doctor responded: "I really don't see a lot of difference in the two visits." Dr. Lanford concluded that she had a 14% impairment before the fall and a 14% impairment after the fall. -2-
Scott County Workers Compensation Panel 04/25/97
Wilda G. Mccarty v. Fast Food Merchandisers, et al.
01S01-9510-CH-00186
Authoring Judge: Senior Judge John K. Byers
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 plaintiff sustained a work-related injury to her right arm, and the trial court found she suffered a 33% vocational disability to the right arm as a result of the injury or 16.5% to the body as a whole. See Thompson v. Leon Russell Enterprises, 834 S.W.2d 927 (Tenn. 1992). The plaintiff had been injured in a non-work-related car accident in 1978, and she had injured her back in a work-related accident in January of 1991. The injury to the plaintiff's back resulted in a court-approved workers' compensation award of 36.5% permanent partial disability to the body as a whole. The injury to the plaintiff's right arm, the January 1991 injury to the plaintiff's back and the injury received in the 1978 automobile accident combined resulted in the plaintiff being found permanently and totally disabled. The trial court held under the provisions of T.C.A. _ 5-6-28(a), the plaintiff was to be compensated by the employer for the 16.5% whole body disability as a result of the injury to her arm on July 1991 and by the Second Injury Fund for 83.5% whole body disability. Because of the plaintiff's low rate of pay, the trial court, applying T.C.A. _ 5-6-27(4)(A), found the plaintiff to be entitled to receive payment for 55 weeks rather than 4 weeks, the permanent total disability benefits normally applicable. The trial judge assessed all of this extra 15 weeks to the Second Injury Fund. Our standard of review is de novo on the record, accompanied by the presumption that the trial court's findings of fact are correct, unless the preponderance of the evidence is otherwise. T.C.A. _ 5-6-225(e)(2). Where the issue is one of law, our standard of review is de novo without a presumption of correctness. Bradshaw v. Old Republic Ins. Co., 922 S.W.2d 53, 53 (Tenn. 1996). 2
Fentress County Workers Compensation Panel 04/25/97
Agatha Lawrence v. Findlay Industries
01S01-9605-GS-00086
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. J. Richard Mcgregor,
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 The plaintiff alleged that she suffered a series of injuries in April, June and August 1992 which aggravated an undescribed condition, and as of January 13, 1993 suffers from bilateral hand pain and numbness with cervical radiculopathy and carpal tunnel syndrome with specific thumb involvement. This case was filed in the General Sessions Court of Warren County, and was, by agreement, heard by the Clerk and Master, "acting as Judge of the General Sessions Court," on October 4, 1995. The trial court found that the plaintiff had a 4 percent permanent partial disability to her left arm, and a 24 percent permanent partial disability to her whole body as a result of a cervical injury. The employer appeals, (1) questioning the finding of a cervical injury, and (2) whether the award of benefits is excessive. II The plaintiff testified that she was, at trial date, "a young 65," who entered the labor market at age 15 or 16 as a sewing machine operator, where she remained 25 years. She obtained another job in the textile industry which required repetitive hand movements, following which she became an entrepreneur, operating a small grocery for three years. She testified that the grocery business also required repetitive movements. After her entreprenurial stint was over, she obtained a job as a school bus driver for ten years, followed by a series of three jobs in the textile industry, the final of which was with the defendant which, we infer, was of short duration. While employed by Easyware (the second of these employers after her bus- driver job) she had a successful carpal tunnel release performed on her right hand. 2
Lawrence County Workers Compensation Panel 04/25/97
Carolyn F. Humphries v. KFC USA, Inc .
01S01-9607-CH-00147
Authoring Judge: Senior Judge James L. Weatherford
Trial Court Judge: Hon. Robert S. Brandt,
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Davidson County Workers Compensation Panel 04/25/97
Carolyn F. Humphries v. KFC USA, Inc .
O1S01-9607-CH-00147
Authoring Judge: Senior Judge James L. Weatherford
Trial Court Judge: Hon. Robert S. Brandt,
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Davidson County Workers Compensation Panel 04/25/97
Brunswick Marine v. Kenneth W. Miller
01S01-9605-CV-00099
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon.
Rutherford County Workers Compensation Panel 04/25/97
Carolyn Marie Drake v. David Carl Drake
03A01-9610-CV-00312
Authoring Judge: HERSCHEL P. FRANKS, J.
Trial Court Judge: HON. ROBERT M. SUMMITT
Petitioner and Respondent are sister and brother, and the Trial Court issued an order of protection in response2 to the petition filed, following an abbreviated trial. On appeal, respondent insists the Trial Court did not have jurisdiction pursuant to Tennessee Code Annotated _36-3-61, et seq., or that the Court refused to permit respondent to present his evidence.
Hamilton County Workers Compensation Panel 04/24/97
State of Tennessee v. Nathan Allen Callahan
03C01-9507-CC-00203
Authoring Judge: David H. Welles, Judge
Trial Court Judge: Hon. R. Jerry Beck
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure. The Defendant, Nathan Allen Callahan, was convicted by a Sullivan County jury of one count of first-degree murder and one count of second-degree murder, respectively, for the shooting deaths of his mother and younger sister. The jury set punishment for the first-degree murder conviction at life imprisonment and fined the Defendant $47,. for the count of second- degree murder. The trial court ordered twenty-two years imprisonment on the conviction for second-degree murder to be served concurrently with the life sentence.
Sullivan County Workers Compensation Panel 04/24/97