Workers Compensation Panel Opinions

Format: 11/23/2017
Format: 11/23/2017
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
Naomi Gentry v. Lumbermens Mutual Co., et al.
01S01-9608-CH-00165
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. C. K. Smith,
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 action was filed January 18, 1995 seeking benefits for a back injury sustained on April 6, 1994 while employed by the defendant hospital. The allegations of the complaint were generally denied, thus requiring the plaintiff to prove every element of her case by a preponderance of the evidence, except when relying upon TENN. CODE ANN. _ 5-6-242 which requires clear and convincing evidence as a predicate. The appellee allegedly suffered a back injury while lifting a patient. She was initially treated by a general practitioner in Gainsboro, Dr. E. M. Dudney, who referred her to Dr. Ray Hester, a neurosurgeon in Nashville, on May 5, 1994. Dr. Hester had treated the plaintiff for injuries she sustained in an automobile accident in 1982. These injuries involved, inter alia, a ruptured disc. She was released from treatment in 1983 with a 15 percent permanent partial impairment, and her activities were restricted. As stated, Dr. Hester saw the plaintiff eleven years later for this workers' compensation injury. He ordered a CT scan which revealed no significant pathology or findings and ultimately diagnosed her complaint as a lumbar strain. On July 19, 1995, he advised the employer by letter that: " . . . Mrs. Gentry apparently had a back strain. She had underlying degenerative joint disease in her back which was the result of her previous injuries to her back and not the more recent one where she was doing some lifting. I don't think she has any permanent impairment in relation to her lifting incident and no anatomical changes as a result of it." At some point before his deposition was taken for proof, Dr. Hester changed his opinion. He testified that the appellee had a five percent permanent impairment solely as a result of her 1994 injury. He found no objective signs of radiculopathy or loss of structural integrity. He imposed moderate lifting restrictions, and thought the appellee should be able to return to work. He found no anatomical changes in her back. Significantly, he testified that his impairment ratings of 15 percent for the 1982 injury and five percent for the 1994 injury were "separate and not a part and parcel of 2
Smith County Workers Compensation Panel 05/16/97
Herbert Earl Carter v. Itt Hartford
01S01-9606-CH-00111
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon.
Carter County Workers Compensation Panel 05/16/97
Eddie Bryant v. Opryland USA, Inc., et al.
01S01-9611-CH-00231
Authoring Judge: Frank F. Drowota, III, Justice
Trial Court Judge: Hon. Alex W. Darnell,
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 defendants in this appeal contend that the Chancellor's award of benefits to the plaintiff on the basis of a percentage to the body as a whole was error in light of the proof which established injuries only to both of plaintiff's arms which are scheduled members. The panel concludes that the award of benefits on the basis of sixty percent to the body as a whole should be modified to provide for an award of sixty percent to both arms. Tenn. Code Ann. _ 5-6-27(3)(A)(ii)(w) (1996 Supp.) The judgment of the trial court is therefore affirmed as modified. The plaintiff, Eddie Bryant, was thirty-six years old at the time of trial. Following his graduation from high school, Bryant served three years in the Navy and received training as a mechanic in diesel repair and in boiler repair. He completed three different training courses at Gravely Equipment, Briggs Equipment School and Echo Power Equipment. Subsequent to his discharge from the Navy, Bryant began working for the defendant Opryland as a mechanic in the horticulture department. Although Bryant was also in charge of the trash crew and performed some tree trimming, his primary job was that of mechanic. In 1992, Bryant began dropping tools and experiencing numbness in his hands. Bryant first saw Dr. Steven Salyers, a medical doctor who specializes in orthopedics, on September 18, 1992. Based upon testing and examination of Bryant, Dr. Salyers diagnosed Bryant as having carpal tunnel syndrome in his right hand. Initially, Dr. Salyers prescribed conservative treatment for Bryant, however, that treatment proved unsuccessful. On January 28, 1993, Dr. Salyers performed corrective release surgery on Bryant's right wrist. Bryant returned to work on light duty, but began experiencing pain and discomfort in his left hand. Electrodiagnostic studies done on March 12, 1993 revealed mild carpal tunnel syndrome. Dr. Salyers -2-
Montgomery County Workers Compensation Panel 05/16/97
Earl Barrett v. City of Lebanon, et al.
01S01-9608-CH-00158
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Charles K. Smith,
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 is a 4-year-old man whose work experience has essentially been limited to manual labor. On August 2, 1994, during the course and scope of his employment by the City of Lebanon and while using a jackhammer, he sprained a neck muscle while attempting to dislodge the implement. He returned to light duty on February 6, 1995 and full duty on March 2, 1995. The issue is whether the evidence preponderates against the judgment of the trial court that the plaintiff retained a 12.5% permanent partial disability to his body as a whole as a result of the cervical strain. Our review is de novo on the record with the presumption of the correctness of the judgment unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2) and TENN. R. CIV. P. 13(d). The treating physician was Dr. W. Garrison Strickland, board-certified in psychiatry and neurology. His examination and testing revealed mild degenerative changes in the cervical spine. He testified that the results of a functional capacity evaluation were inconsistent, meaning that the plaintiff's efforts were not always sincere. Dr. Strickland declined to state an opinion as to whether the plaintiff had any impairment because there were no objective findings and the functional capacity evaluation was inconsistent. The plaintiff was referred to Dr. Jack Fishbein, an orthopedic surgeon, by his attorney. He saw the plaintiff only on one occasion and testified that he found muscle tightness and limited range of motion with pain radiating from the right shoulder. He assessed 5% impairment to the body as a whole. The trial judge found the testimony of Dr. Fishbein to be more credible than the testimony of Dr. Strickland, who, as stated, declined to state an opinion because he found no objective symptoms and does not give impairment ratings if the functional capacity evaluation is inconsistent. 2
Wilson County Workers Compensation Panel 05/16/97
Randy F. Shadden v. ITT Hartford Ins. Co., et al.
01S01-9607-CH-00148
Authoring Judge: Joe C. Loser, Jr., 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer, Hartford, argues (1) the evidence preponderates against the trial court's finding that the employee or claimant, Shadden, suffered a work related injury, (2) the evidence preponderates against the trial court's award of permanent total disability benefits and (3) the trial court erred in awarding medical expenses not disclosed in response to discovery requests and not "properly proven at trial." The Second Injury Fund (the Fund), which was made a party by an amended complaint, contends the evidence preponderates against the trial judge's finding that the claimant is permanently and totally disabled. As discussed below, the panel has concluded the judgment should be affirmed. As a result of a previous compensable injury in 1984, while working for another employer in another state, the claimant was awarded benefits equating to fifty-three percent to the body as a whole. In a vehicular accident in 1989, which was not work related, he suffered spinal injuries which necessitated the insertion of metal rods in his back. The rods were removed in 1994. The employer at all relevant times knew of his pre-existing disabilities. He continued to work with pain and received a number of awards for sales excellence. In January of 1995, he was sales manager for a company in Cookeville which sold copiers. There is conflicting evidence with respect to the exact date of the occurrence, but during the week of January 9, 1995, the claimant noticed a truck driver unloading a large copier, weighing over six hundred pounds, from a truck. He attempted to assist the driver with the unloading when something "popped" in his back and he felt immediate pain. He told a co-worker immediately about the occurrence and had her write it down. He also gave timely written notice. The co-worker testified she had seen the claimant with his hands on the copier, one hand on the side and one on the bottom. The same day, the claimant drove to Fentress County General Hospital's emergency room where he received a shot to relieve his pain. He may or may not have also played racquetball that afternoon, but there is no medical evidence that his new injury was from something other than the lifting incident. He also worked for a few days immediately following the injury but was soon forced to quit because of severe pain. The treating physician, Dr. Leonard Carroll, who was familiar with the claimant's medical history, testified the claimant suffered a new spinal cord injury causally related to the lifting incident and an exacerbation of the pre- existing conditions and that, as a result, he developed, in addition to severe low back pain, bladder incontinence and depression to the extent of being suicidal. 2
Fentress County Workers Compensation Panel 05/13/97
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