Workers Compensation Panel Opinions

Format: 09/01/2014
Format: 09/01/2014
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
Terry Campbell v. Old Republic Insurance Company
01S01-9511-CH-00213
Authoring Judge: William S. Russell, Special Judge
Trial Court Judge: Hon. Jeffrey F. Stewart, Chancellor
Campbell County Workers Compensation Panel 11/25/96
Rebecca Caldwell v. Kelly Services, Inc. and Continental Casualty Company
03S01-9603-CH-00022
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Joe C. Loser, Jr., Judge
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 contends the evidence preponderates against an award of permanent partial disability benefits. The panel concludes the award of permanent partial benefits should be reversed. On September 1, 1994, the employee or claimant, Caldwell, an employee of Kelly Services, was sent to work at Moore's Quality Snack Foods. While working there, she slipped and fell, landing on her hand and arm. After receiving emergency care at the emergency room of a hospital, she was referred to Dr. Michael Lady, who diagnosed tenosynovitis and prescribed a splint and rest from work until her bruising and swelling subsided. On October 19, 1994, the claimant, while visiting a relative in Louisiana, saw Dr. Steiner, and orthopedic surgeon. Dr. Steiner eventually released her to return to work without any restrictions or permanent impairment. She did. On December 2, 1994, she left work because her injured arm was hurting. The next day, she revisited Dr. Lady, who prescribed a wrist splint, medication and rest. The doctor continued to treat her conservatively. His testimony by deposition included the following relevant questions and answers: Q. Okay. Now, Dr. Lady, based upon the American Medical Association guidelines, do you have an opinion which is also based upon a reasonable degree of medical certainty as the 2
Knox County Workers Compensation Panel 11/25/96
Joe Rines v. Mahle, Inc. and Royal Insurance Company
03S01-9509-CV-00101
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. William L. Jenkins
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 results from the refusal of the trial court to modify a judgment entered April 2, 1993 that the employee sustained no permanent disability as a result of a job-related injury in 199 but was entitled to future medical expenses associated with any spinal fusion he elected to undergo. The petition to modify was filed November 23, 1994. The plaintiff alleged that he "has increased disability from surgery performed by Dr. Wallace over and above that which he had when this matter was previously heard." The defendants [hereafter "employer"] moved to dismiss, alleging that the "Court has no jurisdiction to entertain the Petition filed on behalf of the plaintiff or to award him any relief and, further, that neither the provisions of T.C.A. _ 5-6-231 nor of Rule 6.2, TENN. R. CIV. P., are applicable herein." Thereafter, the plaintiff announced that he was relying exclusively upon T.C.A. _ 5-6-231, which provides: 5-6-231. Lump payments final -- Modification of periodic payments for more than six months. -- All amounts paid by employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than six (6) months may be modified as follows: (1) At any time by agreement of the parties and approval by the court; or (2) If the parties cannot agree, then at any time after six (6) months from the date of the award an application may be made to the courts by either party, on the ground of increase or decrease of incapacity due solely to the injury. In such cases, the same procedure shall be followed as in _ 5-6-225 in case of a disputed claim for compensation. The trial court granted the motion to dismiss, holding that since there was no "award payable periodically for more than six (6) months" the statute was inapplicable. On appeal the plaintiff argues that the award of future medical expenses qualifies as an "award payable periodically" within the purview of the statute, as contrasted to the argument of the employer that "an award payable periodically"
Knox County Workers Compensation Panel 11/20/96
Kevin G. Mckenzie v. Blount Memorial Hospital, Inc., Royal Insurance Company and Tha Workers' Compensation Group
03S01-9603-CV-00028
Authoring Judge: Roger E. Thayer, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff, Kevin G. McKenzie, has appealed from the action of the trial court in dismissing his claim by sustaining a motion for summary judgment filed by defendants, Blount Memorial Hospital, Inc., and THA Workers' Compensation Group. The circuit judge ruled the claim was barred by reason of the expiration of the one year statute of limitations. The complaint was filed on November 4, 1994, alleging plaintiff had sustained an injury on September 13, 1993, and on May 7, 1994. The hospital was provided insurance coverage by THA Workers' Compensation Group to December 31, 1993, and Royal Insurance Company for the period in question during 1994. The hospital and THA Group filed the motion for summary judgment contending any claim for the September, 1993, injury was barred. The motion is supported by two affidavits and Plaintiff's Answers To Interrogatories. The affidavit of Joe B. Hill, Jr., the Director of Human Resources, recites plaintiff originally injured himself during January, 1993; he reported on September 13, 1993, he had experienced a recurrence of pain from the injury and he received two sessions of therapy; the last medical treatment for the September 13, 1993, work-related aggravation of his pre-existing condition was on September 15, 1993; that on May 7, 1994, he reported to their emergency room requesting treatment; and the hospital did not make any voluntary payments to any health care providers nor was plaintiff billed for any treatment by the hospital. The other affidavit was executed by Mary Jane Johnson, a family nurse- practitioner of the hospital. This document indicates she saw plaintiff during January, 1993, for evaluation of a neck and shoulder injury which plaintiff said he had sustained a few days earlier; on September 13, 1993, he reported he had re- injured his neck and shoulder; he was referred to a medical group where he was seen the same day but he did not return for a follow-up appointment on October 4, -2-
Knox County Workers Compensation Panel 11/20/96
Terry Hambrick v. Vecellio & Grogan, Inc.
03S01-9603-CH-00030
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Thomas J. Seeley, Jr.
This workers' compensation appeal has been referred to the Special W orkers' 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 drove a heavy truck for the defendant's construction firm. When asked to tell the Court "what happened when you got hurt," he replied: Well I was backing up to get loaded and the loader operator picked one, a big old rock up and he went to put it in the bed of the truck and when he did, he started to let it down and the rock just come out all at once. And when it did, it just rattled, you know, just shook the truck around and around. The accident occurred August 4, 1993. He was seen by Dr. Judson McGowan, an orthopedic specialist, on August 1, 1993, complaining of neck and thoracic spine pain. His condition was diagnosed as acute cervical lumbar strain which was treated conservatively over many months involving sophisticated testing procedures and referrals to specialists in other disciplines, some of whom believed the plaintiff had a psychological overlay with magnification of symptoms. Dr. McGowan testified that "this patient is heading toward the road of a chronic pain syndrome," that he had a five to ten percent impairment, and that he was able to return to lighter work. Dr. Stephen Kimbrough, a neurologist, saw the plaintiff on February 9, 1993, for the evaluation of neck and arm pain. He found no nerve involvement and little or no pathology. He believed that the plaintiff had some pain but "felt that it was somewhat exaggerated and there was some overlay to the pain as well." Like Dr. McGowan, he thought the plaintiff was likely a candidate for chronic pain syndrome, and that he exaggerated his symptomatology. He expressed no opinion about impairment, but felt that he could return to work. Dr. Paul Brown, a specialist in internal medicine and cardiology, testified that he had treated the plaintiff for a number of years for various illnesses, one of which was hypertension which he attributed in part to pain, but he declined to reference the hypertension to the accident and expressed no opinion about impairment. 2
Unicoi County Workers Compensation Panel 11/20/96
Sidney Eugene Abbott and Willie Bean v. Firestone Tire & Rubber Co. and Liberty Mutual Insurance Company
02S01-9510-CV-00097
Authoring Judge: Joe C. Loser, Jr., Judge
Trial Court Judge: Hon. Janice Holder,
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 consolidated appeal, the employees or claimants, Abbott and Bean, contend the evidence preponderates against the trial judge's finding that they have not suffered a compensable occupational disease. The panel finds the judgment should be affirmed. Bean worked for Firestone for 39 years as a janitor, mold cleaner and production worker. Abbott worked for Firestone for 15 years as a maintenance man. Both were exposed to dust and fumes from chemicals used in the manufacturing of tires and other rubber products. Before the plant closed in 1983, both men began to experience difficulty breathing. Both are, or were during their years of work for the employer, heavy smokers. They developed chronic obstructive pulmonary disease (COPD). The diagnoses were first made in 1989 and 199, by Dr. Richard Wunderink, a physician board certified in both pulmonary and critical care medicine. The doctor also diagnosed Abbott with asbestosis and asbestos related pleural plaques. In his testimony, Dr. Wunderink opined that the exposure at Firestone contributed to and aggravated the COPD and that the asbestosis and asbestos related pleural plaques were directly related to exposure to asbestos. The doctor diagnosed Bean as having asbestosis and asbestos related pleural plaques, in addition to COPD. He also opined that Bean's asbestosis and pleural plaques were "caused by his occupational exposure to asbestos." The COPD was aggravated by exposure to dust at work. Dr. Paul Wheeler, a staff radiologist and chief of the pneumoconiosis section at Johns Hopkins, studied the x-rays of both claimants and opined in his testimony that neither claimant showed evidence of occupational disease related to exposure to asbestos. At the suggestion of Dr. Wheeler, the trial judge ordered CT scans, the results of which were read by separate doctors, one chosen by the claimants and one chosen by the defendants. Both found the claimants lungs to be normal, except that Bean apparently suffered from emphysema. The trial judge found that the evidence failed to establish the elements necessary for an award of workers' compensation benefits for an occupational disease. 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). Where the trial judge has seen and heard the witnesses, especially with issues of credibility, where weight to be given oral testimony are 2
Shelby County Workers Compensation Panel 11/19/96
Mary Benson v. The Kroger Company and Cna Insurance Company
02S01-9601-CH-00002
Authoring Judge: Joe C. Loser, Jr., Judge
Trial Court Judge: Hon. Neal Small,
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 employer and its insurer contend (1) the award of permanent disability benefits based on one hundred percent to both arms is excessive, (2) it was error to award certain medical expenses, (3) it was error to award discretionary costs, and (4) it was error to award judgment against both defendants. The employee contends by cross appeal (1) the trial court erred in limiting the recovery for permanent partial disability to four hundred weeks, (2) the trial court erred in its award of temporary total disability benefits, (3) the trial court erred in allowing the employer credit for temporary total disability benefits paid, and (4) the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Benson, is 53 years old with a high school education and experience as a meat wrapper in grocery stores. She has no skills or training. She gradually developed bilateral carpal tunnel syndrome while so employed at Kroger. She had carpal tunnel surgery on her left arm in November of 1992 and returned to work at Kroger in January of 1993 as a meat wrapper. She continued to have problems with her hands and became disabled to perform her duties, which included heavy lifting and repetitive use of both hands in a cold environment. Medical benefits were discontinued in July of 1994. She retains a ten percent permanent impairment to her left arm and twenty percent impairment to her right arm, superimposed upon a pre-existing vascular disorder. As a result of the combination of the compensable injury and pre-existing condition, she is medically restricted from repetitive use of the hands, heavy lifting or working in a cold environment. The trial court awarded permanent partial benefits for four hundred weeks, based on one hundred percent permanent disability to both arms, medical expenses of two unauthorizedphysicians and futuremedical benefits. 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). 2
Shelby County Workers Compensation Panel 11/18/96