Workers Compensation Panel Opinions

Format: 12/22/2014
Format: 12/22/2014
Johnny Ownby v. National American Insurance Company
03S01-9604-CV-00037
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Rex Henry Ogle,
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 awarded plaintiff 48% permanent partial disability to the body as a whole at a compensation rate of $266.66 per week. Defendant challenges the amount of disability awarded, the compensation rate applied and certain discretionary costs awarded. Plaintiff, 37, graduated from high school. Most of his work experience has been in heavy construction labor. He testified that he injured his lower back on July 4, 1994, while digging up an asphalt driveway and loading the asphalt chunks onto a truck for defendant's insured. He worked on light duty until October but has not worked since October.1994. Plaintiff was treated by Alan L. Whiton, M.D., an orthopedist, who testified in this case by deposition. He opined that plaintiff had a disruption or internal cracking of L4-L5 based upon the results of a discogram. He assigned plaintiff a five percent permanent impairment rating to the body as a whole according to the AMA Guides. George B. Brooks, D.O., a family practitioner, examined the plaintiff at the request of his attorney. He diagnosed degenerative disc disease with radiculopathy at L4-5 by history. He assigned a ten percent impairment rating according to the American Orthopedic Academy guidelines. He testified that he would not disagree with Dr. Whiton's five percent impairment rating but that he also considered that plaintiff had over six months of subjective complaints of pain. He further testified that some portion of his impairment rating was attributable to degenerative changes that predated plaintiff's work-related injury, but he could not apportion it. Fred A. Killefer, M.D., neurosurgeon, examined plaintiff at the request of the defendant. He found no objective signs of a permanent injury and opined that plaintiff had a normal spine with subjective complaints of pain. He further opined 2
Knox County Workers Compensation Panel 12/19/96
Wesley Eddins, Sr. v. North American Rayon Corporation
03S01-9602-CH-00016
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. J. Richard 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 employer, North American Rayon Corporation, has appealed from the trial court's award of permanent disability benefits to plaintiff, Wesley Eddins, Sr. The Chancellor fixed the award at 45% to the body as a whole. Two issues are presented on appeal. First, the employer contends the trial court was in error in allowing temporary total disability benefits. Second, it is argued plaintiff did not incur any permanent disability as a result of the alleged work-related injury. Plaintiff is 29 years of age and is a high school graduate. He has been going to college for about two years attempting to rehabilitate himself for other types of employment. His college work would classify him as a sophomore. On about October 11, 1991, he was injured while at his work station when the floor gave away causing him to fall some distance below. He said the fall injured his back and he had immediate pain up and down his spinal cord and pain in his neck and legs. He continued to work for about two weeks until his condition became worse; at one point, he testified, he could not move his legs; the company doctor took him off work duties on about November 8, 1991, and he had not returned to work as of the date of the trial on September 25, 1995; his chief complaint has been massive muscle spasms; he told the court his condition did not improve much until August-September 1994. The record indicates he has seen many doctors, some have testified extensively in this proceeding and others appear in the record by medical reports, letters, etc., identified as collective exhibit #1. The review of the case is de novo accompanied by a presumption of the correctness of the findings of fact unless we find the preponderance is otherwise. T.C.A. _ 5-6-225(e)(2). 2
Washington County Workers Compensation Panel 12/19/96
Timothy Crabtree v. Apac Tennessee, Inc.
03S01-9603-CH-00035
Authoring Judge: Senior Judge John K. Byers
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. The trial judge found the plaintiff had sustained an injury to his knee and back arising out of and in the course of his employment with the defendant. The trial court awarded the plaintiff 3% permanent partial disability to the leg as a result of the knee injury and 25% permanent partial disability to the body as a whole as a result of the back injury. The defendant says the trial judge erroneously found the plaintiff had given notice of an accidental injury to his back and says, also, that the awards for the injuries were erroneous. We affirm the judgment of the trial court. Injury to the Knee During March 1992, the plaintiff injured his right knee. He was treated by Dr. Paul Naylor for this injury. Dr. Naylor performed surgery on the plaintiff's knee on October 13, 1992 to repair the damage sustained by the plaintiff. Dr. Naylor testified the plaintiff had a 12% medical impairment to his knee as a result of the accident, which the defendant does not dispute. We find the evidence does not preponderate against the evidence of 3% permanent partial disability to the leg found by the trial judge, and we affirm the judgment thereon. T.C.A. _ 5-6-225(e)(2). Injury to the Back The plaintiff testified he injured his back in April 1993 when he reached back to lock the tailgate of a truck he was driving in the course of his employment. He testified he gave notice of the injury to his supervisor, James Hawkins, and the safety director, Steve Bell. Hawkins and Bell testified the plaintiff did not give them notice of an accidental injury as he testified. They testified the plaintiff related that the back pain he was having was connected to, or was a result of, the knee injury. 2
Knox County Workers Compensation Panel 12/19/96
Richard Caldwell v. Activated Metals & Chemicals, Inc., et al.
03S01-9602-CV-00015
Authoring Judge: John K. Byers, Senior 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. The trial court awarded plaintiff 35% permanent partial disability to the body as a whole. Defendant challenges the trial court's finding that plaintiff's impairment arose out of a work-related injury and the trial court's consideration of the testimony of the plaintiff's expert witness. Plaintiff, 43, finished the eleventh grade. He has a varied work experience, having worked in restaurants, construction, as a stockboy, a janitor/security guard and as a salesperson of draperies and linens. He testified that he suffered an injury in the nature of an occupational disease from inhaling aluminum oxide dust and the dust of a nickel aluminum alloy at his workplace, resulting in his having to stop working and seeking medical care on July 28, 1993. He began working for defendant in January 1993. Plaintiff was referred to Barry Frame, M.D., a specialist in thoracic and cardiovascular surgery, who testified in this case by deposition. He diagnosed pneumonia with complicating empyema (or lung abscess). Apparently, plaintiff suffered a pneumothorax, or puncturing of the lung. Dr. Frame opined that this pneumothorax was the result of infection, a pneumonia resulting from the aspiration of some anaerobic organism. No organism was cultured. When asked if plaintiff told him that his condition started as a result of exposure to a metal compound at work, Dr. Frame testified that he was aware that there was some consideration of an occupational factor, but that plaintiff should be referred to a pulmonologist to evaluate that; he had been concerned with dealing with the pneumonia and its complications. Chaim Cohen, M.D., a specialist in occupational medicine, examined the plaintiff at the request of his attorney. He examined plaintiff, reviewed material safety data sheets for compounds to which plaintiff had been exposed, reviewed 2
Knox County Workers Compensation Panel 12/19/96
John D. Baggett v. Firemen's Fund Insurance Company
01S01-9603-CH-00055
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Robert S. Brandt,
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 complaint alleges "[t]hat on or about the 22nd day of June, 1993, the Plaintiff, while operating a printing press, had his left thumb amputated when it became caught in the press." In point of fact, he suffered an "avulsive injury of the distal aspect of his thumb, just distal to the IP joint with nerve and vascular damage within the thumb proximal to the point of severance." The thumb fragment could not be re-attached and the amputation was surgically completed at the level of the interphalangeal joint, resulting in the loss of one-half of the thumb. The defendant admitted the material allegations of the complaint and essentially conceded that the plaintiff was entitled to recover benefits for the loss of a thumb. Notwithstanding that the complaint did not allege disability to the hand, the issue at trial was whether the injury so affected the hand as to justify an award for benefits thereto rather than for the loss of a scheduled member. The Chancellor limited benefits to the loss of the thumb; the employee appeals insisting that he is entitled to benefits for resultant partial permanent disability to his hand. The treating surgeon was Dr. Bruce Shack, a reconstructive specialist from the Vanderbilt Medical Center. He testified: Q. Now, Doctor, have you formed an opinion based upon a reasonable degree of medical certainty whether or not this injury Mr. Baggett suffered will result in any permanent impairment? A. Yes, sir, I have. Q. Will you tell the Court what that opinion is, sir. A. Well, this is a relatively straight forward type of case where the amputation through the interphalangeal joint of the thumb allows us to utilize the Guides that are set forth in the American Medical Association's Guides to the Evaluation of Permanent Impairment and basing Mr. Baggett's impairment on the loss of the thumb through the interphalangeal joint, I had rated him as 2 percent impairment of the hand. And, of course, that using the conversion tables equals an 18 percent impairment of the upper extremity and 11 percent impairment of the whole person. Q. Now, the injury to the thumb and hand as you've indicated, is that in anyway affected by the upper extremity? 2
Davidson County Workers Compensation Panel 12/19/96
Fireman's Fund Insurance v. Taylor Barton Mills
03S01-9601-CH-00008
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dennis H. Inman,
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 finding that his injury was caused by intoxication. The panel concludes the judgment should be reversed. On February 15, 1995, the employee or claimant, Mills, was working at his job as a machinist using a large lathe to bore a specifically sized hole into a fifty inch bull gear. After stopping the lathe to take a measurement, he accidentally - perhaps negligently - brushed against the lathe's starter button. The lathe started and the claimant's clothing was caught in the turning lathe. As a result, he was injured. Tests done at the University of Tennessee Medical Center shortly after the accident revealed a high level of cannaboid concentration from probable chronic use of marijuana. The claimant admits to being a chronic user of marijuana and had admittedly smoked two or three "joints" on the evening before the accident. Additionally, two witnesses testified that they thoughtthey saw him from some one hundred feet away, sharing a joint with another employee on the morning of the accident, before beginning work. The claimant and other employee denied it. The employer knew Mills was a heavy marijuana user and had fired him for thirty days on a previous occasion for "suspected" use of the substance, but re-hired him 3 days later at a higher rate of pay. An expert, without examining the claimant, opined from lab test results that marijuana intoxication was a possible contributing cause of his 2
Knox County Workers Compensation Panel 12/18/96
Patricia D. Woodward v. American General Life & Accident Insurance Company
03S01-9512-CV-00138
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Thomas J. Seeley, 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. In this appeal, the employee or claimant, Woodward, contends the evidencepreponderates against the trial court's finding that her fibromyalgia was not causally related to her injury. The panel concludes the judgment should be affirmed. On July 23, 1992, the claimant was involved in a car wreck arising out of and in the course of her employment as a debit agent for the employer, American General. She suffered a mild strain of the neck, superimposed upon preexisting osteoarthritis. She was first seen by Dr. Sherrod, who made the diagnosis, then followed by Dr. Calvin Johnson at Wautauga Orthopedics. Dr. Johnson provided conservative care and assigned minimal permanent impairment. She was further treated by Dr. David Lurie, a rheumatologist, who diagnosed fibromyalgia but expressed no opinion as to whether her condition was causally related to the accident. The claimant was under Dr. Lurie's continuing care at the time of the trial. Her attorney referred her to Dr. Mark T. McQuain, a specialist in physical medicine and rehabilitation. Dr. McQuain's impression, as reflected in his notes, was: 1. Cervical degenerative disc disease,maximum at C4-5 and C5-6. 2. Generalized fibromyalgia/tension myalgia, post traumatic. 3. Patellofemoral degenerative joint disease, bilaterally. 4. Tendency for pain magnification. 2
Washington County Workers Compensation Panel 12/17/96
Carolyn S. Todd v. St. Paul Fire and Marine Ins. Company
02S01-9603-CV-00023
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. J. Steven Stafford,
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 contends (1) benefits should be denied because of a false application for employment, (2) the trial court erred in awarding medical expenses not authorized by it, (3) the trial court erred in awarding temporary total disability benefits from the date of the injury until September 13, 1993 and (4) the award of medical benefits based on ten percent permanent partial disability to the body as a whole is excessive. The employee contends the award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded the award of temporary total disability benefits should be modified and the judgment otherwise affirmed. The employee or claimant is thirty-four and has an eighth grade education. She first completed a job application on September 25, 1989 and was hired as a flagman at Ford Construction Company, but performed other jobs, including driving a truck and shoveling or sweeping asphalt. Because the work was seasonal, she signed three subsequent applications. In her applications, the claimant denied any previous back injury or workers' compensation claim. In both respects, the application was false. She had in fact received in the past benefits for a back injury, from another employer. On July 2, 1992, the claimant injured her back while shoveling asphalt at work. She continued working until July 16th, when she was referred to Dr. J. Canale. Dr. Canale diagnosed myositis and muscle inflammation, for which he treated her conservatively until August 27th, when he released her to return to work without restrictions, limitations or permanent impairment. The claimant informed the employer that she was dissatisfied with Dr. Canale and asked to be referred to another doctor. In her testimony, she said the insurance company failed to provide her with the name of another doctor or a list from whom she could have made a choice. The trial judge apparently believed her. On the advice of her attorney, she saw Dr. James McAfee on September 11, 1992. Dr. McAfee diagnosed cervical strain, for which he prescribed physical therapy and nerve blocks. The doctor opined the injury was related to the injury at work and estimated the claimant's permanent impairment at eight percent to the whole body, from appropriate guidelines. The claimant incurred medical expenses for care prescribed by Dr. McAfee totaling $5,974., which the trial court found to be reasonable and reasonably necessary. 2
Dyer County Workers Compensation Panel 12/06/96
Mary A. Marshall v. Bc/Bs of Memphis, et al
02S01-9606-CV-00058
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Irma Merrill,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance 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 it was error to summarily dismiss her claim as being barred by Tenn. Code Ann. section 5-6-23, a statute of limitation. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for trial of all issues raised by the pleadings. The action was commenced by the filing of a complaint and summons on February 24, 1995 seeking workers' compensation benefits for injuries and disabilities arising out of and in the course of the claimant's employment with the defendant, Blue Cross / Blue Shield of Memphis. In particular, the employee claims that she has become permanently disabled from the repetitive trauma of operating a key punch machine. By their responsive pleading, the defendants deny the existence of the injury and deny that they received timely notice, but do not assert the affirmative defense that the claim is barred by any statute of limitations. The defendants then took the claimant's discovery deposition and interrogated her concerning, among other things, when she first knew her work was causing pain. Her deposition reveals that her pain began in 1992 and was reported to the employer. The employer, however, chose to treat her claim not as one for workers' compensation benefits, but for group health benefits. On January 18, 1996, the defendants served a pre-trial "Motion to Dismiss" the claimant's claim "pursuant to Rule 41.2 of the Tennessee Rules of Civil Procedure" for "failure to file such cause of action within the time prescribed by Section 5-6-23 of the Tennessee Code Annotated." The motion was, according to the trial judge's order of dismissal, "supported by" the claimant's discovery deposition. The trial judge treated the motion as a Tenn. R. Civ. P. 56 motion for summary judgment, found from the deposition that the claimant "was told in 1992 that she was suffering work related injuries to her wrists, shoulders, neck and back by her physicians (sic) statement to her employer so stating and was told by her employer she did not have a workers' compensation claim," and dismissed the claim as being time-barred. By Tenn. R. Civ. P. 56.3, summary judgment will lie if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment is almost never an option in workers' compensation cases; however, when there is no dispute over the evidence establishing thefacts 2
Marshall County Workers Compensation Panel 11/27/96
Doris Tabor v. Crossville Ceramics
03S01-9510-CV-00117
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. John J. Maddux, 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 alleges that on March 7, 1994 she sustained injuries to her arms and hands during the course of her employment owing to their repetitive use; that she returned to work as a polisher for the Crossville Ceramics Company and that on March 23, 1994 she injured her neck or back while pushing a box of tiles. The defendants admitted that the plaintiff suffered a temporary injury but denied that she sustained a permanent disability. Thereafter, on May 24, 1995, an approved Order was entered whereby the plaintiff voluntarily dismissed "her cause of action as to her March 23, 1994 injuries" pursuant to Rule 41, Tenn. R. Civ. P. This procedure is unchallenged, and we will treat the complaint as having been amended to allege a compensable injury by accident which occurred on March 7, 1994. The plaintiff testified that she worked as a sorter in the polishing department of the ceramics manufacturer, the kind of work that required repetitive motions of both arms. On March 7, 1994 numbness and tingling developed in both arms which she reported to her supervisor and for which she received conservative medical treatment. She continued at her job for more than one year, leaving employment in April 1995 after allegedly suffering a neck injury. During the thirteen months between March 1994 and April 1995 the plaintiff was seen by a procession of physicians practicing various disciplines. Dr. Simpson, the orthopedic physician selected by the plaintiff, treated her over a period of months and concluded that she exaggerated her symptoms which were not anatomic. He testified that she suffered no impairment. His findings are supported by those of the Knoxville Neurology Clinic and the East Tennessee Orthopedic Clinic. The plaintiff was referred by her attorney to Dr. Gorman, an orthopedic surgeon practicing in Johnson City, who testified that she had a five (5) percent impairment in each arm, and recommended avoidance of "repetitive factory work." 2
Cumberland County Workers Compensation Panel 11/26/96
Ernest O. Wood v. Aluminum Corporation of America
03S01-9601-CV-00007
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. W. Dale Young,
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. Fairly stated, the issues in this appeal are whether the employee should have been awarded permanent partial disability benefits and additional temporary total disability benefits. The panel has concluded the judgment should be affirmed. The employee or claimant, Wood, is a high school graduate who has worked for the employer, ALCOA, since approximately 1971. On June 7, 1991, while at work, he fell from the top of a tray of carbons, landing on his right side and injuring his right elbow, shoulder and hip. He continued working for the employer, while being conservatively treated for a torn right rotator cuff, until August 15, 1991. The injury was surgically repaired September of the same year and the employee returned to work for the employer on or about May 8, 1992 with minor restrictions. He was laid off six weeks later and has not worked since July 6, 1992. Because of other illnesses, he is receiving disability retirement benefits. He has received temporary total disability benefits for the time he lost from work before the layoff. He has also received medical benefits as required under the workers' compensation law. The medical proof as to whether the claimant's disability is causally related to his injuries is speculative and equivocal. In separate litigation, he claims to be disabled from asbestos-related lung disease. The trial judge disallowed the claim for disability workers' compensation benefits for insufficient proof that the disability is causally related to the injury at work. 2
Knox County Workers Compensation Panel 11/25/96
Anne H. Lawrence v. Itt Hartford Insurance Company
01S01-9511-CH-00199
Authoring Judge: William S. Russell, Special Judge
Trial Court Judge: Hon. Robert Brandt
Lawrence County Workers Compensation Panel 11/25/96
Amy Ferrell Robinson Manufacturing Company and Argonaut Insurance Company
01S01-9512-CH-00224
Authoring Judge: William S. Russell, Special Judge
Trial Court Judge: Hon. JEFFREY F. STEWART
Grundy County Workers Compensation Panel 11/25/96