Workers Compensation Panel Opinions

Format: 06/19/2018
Format: 06/19/2018
Darla Gail Farmiloe v. Saturn Corporation
01S01-9610-CV-00199
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. This complaint was filed June 23, 1994. The plaintiff alleged that she sustained various job-related injuries arising from her employment, the first being November 21, 1991 involving upper back and shoulder pain which developed gradually. The defendant admitted the report of these injuries. Trial of the case in February 1996 resulted in a finding that the plaintiff's job duties advanced the severity of her pre-existing conditions and that she had sustained a 75 percent occupational disability with benefits payable in a lump sum. The employer appeals, and presents for review the issues of (1) whether the plaintiff sustained a compensable injury to her neck, back and left upper extremity, (2) whether the award is excessive, and (3) whether the award should be paid in a lump sum. W e will consider these issues jointly. 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). Where testimony is presented by deposition, this Court is able to make its own independent assessment of the proof to determine where the preponderance of the evidence lies.
Maury County Workers Compensation Panel 06/24/97
Calsonic Yorozu Corp., et al. v. Sulay Lamin
01S01-9608-CH-00163
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon.
Warren County Workers Compensation Panel 06/24/97
Luther T. Beckett v. Gaylord Entertainment Company
01S01-9610-CV-00209
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Walter C. Kurtz,
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 defendant should be estopped to plead the bar of the Statute of Limitations. The trial judge ruled that waiver and estoppel were not implicated and dismissed the suit. The plaintiff alleged that he was injured while working for the Opryland Hotel on May 28, 1994. The defense of the Statute of Limitations was raised by motion for summary judgment, the hearing of which was bifurcated. The trial court determined that the plaintiff was aware of a job-related injury no later than June 8, 1994,1 but conducted a separate hearing on the issue of waiver and estoppel, following which he ruled that the delay in filing suit was the fault of the plaintiff. Plaintiff was employed at the Opryland Hotel in Nashville on May 28, 1994, as a doorman. On the early afternoon of May 28, 1994, he felt a pain in his lower right abdomen, and thought he had pulled a muscle and reported this to the door captain. He then told the bell services manager that he thought he had pulled a muscle and requested permission to go home, which was granted. He returned to work on his next scheduled work day, and continued to work without complaint until he was terminated for an unrelated reason on August 13, 1994. Plaintiff went to see his personal physician, Dr. Jacokes, about this injury on June 8, 1994. After examining the plaintiff, Dr. Jacokes advised him that he had a hernia. Plaintiff knew that his injury had occurred at work, but he made no mention to Opryland of his hernia before leaving his employment. Plaintiff testified that the pain in his lower abdomen worsened in April, 1995, and he sought additional medical treatment. His physician told him that he would need surgery and, as a result, he contacted defendant to file a workers' compensation claim. He was referred to Willis Corroon, the third party administrator of Opryland's workers' compensation claims, and spoke with Ms. Ann Parker, claims adjuster, at Willis Corroon. 1The Complaint was filed July 26, 1995. 2
Davidson County Workers Compensation Panel 06/24/97
David H. Crenshaw, Sr. v. Ats Southeast, Inc.
01S01-9701-CH-00018
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Chancellor
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 is an appeal by the employer from an order of the trial court setting aside a previously issued order of dismissal for failure to prosecute a workers' compensation case within one year under the local rules of court for Davidson County. The trial court set aside the dismissal order under Rule 6.2, TENN. R. CIV. P. The complaint for workers' compensation benefits was filed October 14, 1994. The defendant filed an answer on November 17, 1994. The trial court, sua sponte, dismissed the complaint on November 6, 1995 under the local rule for failure to prosecute. The record before us, which consists of the pleadings, orders and an affidavit of the employee's counsel in support of his Rule 6 motion, show the notice of dismissal was filed on counsel for the plaintiff on November 14, 1995. On January 22, 1996, plaintiff filed a Rule 6 motion to have the order dismissed or set aside. On February 26, 1996, the trial judge found "Plaintiff [had] not made out a sufficient showing of mistake, inadvertence, surprise, or excusable neglect to justify relief under Rule 6, Tennessee Rules of Civil Procedure," however "because this matter is a workers' compensation action, the Order of Dismissal will be set aside and this case shall be put back on the Court's active docket." Unless otherwise set out in the order of dismissal, such order operates as an adjudication upon the merits. Rule 41.2(3), TENN. R. CIV. P. Rule 59.4, TENN. R. CIV. P., provides for a motion to amend or alter a judgment. Such motions must be filed and served on the opposite party within 3 days of the entry of the judgment in question. A judgment becomes final in 3 days and cannot be reviewed after that time. Algee v. State Farm General Ins. Co., 89 S.W.2d 445, 447 (Tenn. Ct. App. 1994). The order of dismissal in this case became final 3 days after entry thereof, 2
Davidson County Workers Compensation Panel 06/23/97
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