Workers Compensation Panel Opinions

Format: 11/23/2014
Format: 11/23/2014
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
Clint Evard v. Saturn Corporation
01S01-9601-CV-00019
Authoring Judge: Hamilton V. Gayden, Jr., Special 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. Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the claimant contends that the trail court erred by averaging two permanent partial disability rating for two scheduled members. Claimant also contends that the final anatomical impairment award was inadequate. The panel concludes that the methodology utilized by the trial court in arriving at the percentage of permanent partial disability was proper; however, the panel is of the opinion the final award was inadequate. In accordance with T.C.A. 56-225(e), the standard of review in this case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings. It is the claimant's burden to show by a preponderance that the evidence is otherwise. The claimant developed bilateral carpal tunnel syndrome as a result of his work at Saturn where his job involves repetitive grasping of small metal clips which are place on a car door as it passes along the assembly line. When he began installing around 6, clips/ day, his hands began to swell so severely that on one occasion he could not tell that he had cut his hand. Subsequently, he was diagnosed with carpal tunnel syndrome and carpal tunnel release surgery was performed on his right wrist. The claimant filed this workers compensation lawsuit on February 27, l995. At trial in l995, the trial court awarded the claimant a l% permanent partial disability to his right arm and a 5% permanent partial disability to his left arm which at his compensation rate of $382.79 per week amounts to $14,354.3. The percentage disabilities were established by one of the claimant's doctors, Dr. Gaw. The claimant argues that the trial court erred in assessing a percentage of disability to each arm separately under T.C.A. 5-6-27(3)(A)(ii)(m) rather than as one scheduled injury under T.C.A. 2
Maury County Workers Compensation Panel 11/14/96
Mary L. Brents v. Batesville Casket Company, Inc. and Lumbermen's Mutual Company
01S01-9508-CV-00141
Authoring Judge: Jerry L. Smith, Special Judg
Trial Court Judge: Hon. John W . Rollins, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court for hearing andreporting of findings of fact and conclusions of law. See Tenn. Code Ann. _ 5-6- 225(e)(3)(199). Appellant Mary L. Brents presents the following issues for review: (1) whether the trial court erred in finding that attorneys' fees for both accrued and future benefits could not be paid solely from the future benefits award and (2) whether the trial court erred in reducing the amount of her weekly benefit payments by twenty percent, thereby reflecting the advance, lump-sum payment of attorneys' fees. After a review of the record, We affirm the judgment of the trial court. I. FACTUAL BACKGROUND On February 13, 1992, Appellant filed a workers' compensation action against Batesville Casket Company. On March 14, 1994, following a hearing, the trial court found that Appellant was due a fifty-five percent permanent partial disability award for a work-related injury that occurred in October of 1991. The trial court indicated that, had proper notice been given, Appellant would have also been due a fifteen percent permanent partial disability for a work-related injury that occurred in March of 1992. On February 9, 1995, this Court affirmed the judgment of the trial court regarding the October, 1991, injury and reversed the judgment of the trial court regarding the March 1992 injury, modifying Appellant's award to include the additional fifteen percent permanent partial disability. On March 13, 1995, Appellant received three checks pursuant to the decision of this Court. These checks represented (1) payment for all then- accrued and outstandingincome benefits, totaling $16, 211.13, (2) payment for attorneys' fees 2
Coffee County Workers Compensation Panel 11/14/96
Charles Tolan v. Ed Brown
03S01-9603-CH-00027
Authoring Judge: Joe C. Loser, Jr., Special 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The issue in this appeal is whether the defendant-appellee, Brown, is a statutory or principal employer of the plaintiff- appellant or claimant. The panel concludes that the judgment should be affirmed. Brown is the owner of rental property, including the Guthrie Mini Warehouse in Cleveland. He is not a builder or general contractor. In the late spring of 1994, he contracted with Kevin Eason to replace the roof on the warehouse. Among those employed by or on behalf of Eason to do the work was Charles Tolan. By the terms of the contract, Brown paid Eason $5,. and furnished the material. There was no time limit on when the work was to be completed and Brown exercised no control over the work of Eason's employee's, including Tolan. Brown did not provide the tools for the work, except one ladder. At one point, it became apparent that the work was not being done properly, which Brown pointed out to Eason. Eason corrected the problem. On July 12, 1993, Tolan was injured when he fell from the roof of the warehouse. He has sued for workers' compensation benefits. After a trial on the merits, the chancellor found that Eason and some other defendants, but not Brown, were liable to the claimant for workers' 2
Bradley County Workers Compensation Panel 11/05/96
James Raymond Casey v. The Travelers Insurance Company
02S01-9605-CH-00047
Authoring Judge: Joe C. Loser, Jr., Judge
Trial Court Judge: Hon. George R. Ellis,
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's insurer contends (1) the award of permanent partial disability benefits is excessive, (2) the award of temporary total disability benefits is excessive and (3) the trial court erred in granting plaintiff's motion for discretionary costs. As discussed below, the panel concludes the judgment should be modified. The employee or claimant, Casey, is 29 years old and has a tenth grade education. His working experience consists of light to medium manual labor. On October 11, 1994, his right hand caught in some belts at work and was injured. He continued working for approximately one month. He was treated by an orthopedic surgeon beginning on December 22, 1994. The treating doctor diagnosed a rupture of the extensor tendon of the last joint of the claimant's right little finger, swelling of the PIP joint of the ring and middle fingers of the same hand and decreased range of hand motion, for all of which he prescribed a splint for the little finger and range of motion exercises for the hand. In time the swelling disappeared and he recovered full range of motion in the hand. He improved to the extent that he could have returned to work on January 13, 1995. The doctor assigned a permanent partial impairment rating of eight percent to the right little finger because the claimant "lacked about thirty degrees of extension of the DIP joint of the right little finger." The doctor's testimony also included the following questions and answers: Q. ... in your opinion, he did not sustain any permanent impairment with regard to his hand or to the arm? A. No, Ma'am. Q. Okay. In your opinion, ... would the plaintiff have necessarily had any problems in going back to work and using his hand? 2
Crockett County Workers Compensation Panel 11/05/96
Hazel Maness Flatt v. The Insurance Mart, Inc.,
02S01-9601-CH-00007
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Trial Court Judge: Hon. Joe C. Morris,
This workers' compensation appeal was heard by the Special Workers' Compensation Panel in accordance with provisions of T.C.A. _ 5-6-225(e)(3). We have by this opinion reported our findings of fact and conclusions of law to the Supreme Court. Hazel Maness Flatt ("plaintiff") was employed by Gary Wright and his sister Nita Middleton to care for their mother, Lorene F. Wright, at her residence in Chester County. As part of her employment, plaintiff lived in Ms. Wright's home from Monday through Friday. Other sitters provided care for Ms. Wright on weekends. Plaintiff's job duties included fixing meals, cleaning the house, sweeping, vacuuming, washing clothes, taking Ms. Wright on errands, and generally just watching after her. On about October 5, 199, plaintiff injured her back while assisting Ms. Wright into plaintiff's car. The record reflects that Gary Wright served as president of The Insurance Mart, Inc. ("defendant"), a company engaged in the sale of automobile insurance in Nashville. Wright and his wife were the sole shareholders of the defendant company. His sister, Nita Middleton, was an employee of defendant. Plaintiff was paid her weekly checks from defendant's payroll for her services to Ms. Wright. Her W-2 Wage and Tax Statement for 199 listed defendant as her employer. However, defendant listed plaintiff regularly on its Non-Employee Compensation Report. For these apparent reasons, plaintiff filed suit against defendant in the Chancery Court of Chester County. Following a bench trial, the chancell or denied plaintiff's claim for workers' compensation benefits on the grounds that (1) plaintiff was a domestic servant and not an employee of defendant, and (2) that she was also an independent contractor. This appeal followed. 2
Chester County Workers Compensation Panel 11/01/96
Allen v. Jones
02S01-9512-CV-00127
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. James M. Tharpe
This worker's compensation appeal has been referred to the special worker's compensation appeals panel of the Supreme Court in accordance with Tenn. Code Ann. _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Shelby County Workers Compensation Panel 11/01/96
Brian Matthew Woosley v. Townsend Electric Company
02S01-9505-CH-00040
Authoring Judge: Janice M. Holder, Special Judge
Trial Court Judge: Hon. Joe C. Mo Rris
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Our scope of review of findings of fact by the trial court 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. _ 5-6-22 5(e)(2). The sole question raised on appeal is whether the evidence preponderates against the chancellor's holding that the employee's injury arose out of the course and scope of his employment. For the reasons set forth below, we affirm the trial court. The plaintiff, Brian M. Woosley ("Woosley"), was employed as an electrician's he lper for To wnsend Electric. Du ring the sev eral month s of his employment with Townsend, he worked at a series of job sites. The method by which he would arrive at the site varied. For two of the jobs, he met the foreman at the Townsend "shop"on the first day of the job; thereafter he drove his own vehicle to the job site. At a third job location, he met the foreman at the Townsend shop and rode with him to the job site. While at the shop, he sometimes loaded material for use on the job. At a fourth site, the foreman drove to Woos ley's home an d transporte d him to the job. Woo sley was nev er paid until he arrived at the job site and he was never reimbursed for transportation expenses when he drove his own vehicle. On July 13, 1992, Woosley was working at a fifth job in Brownsville when he was injured en route to the job site. For the two weeks prior to his injury, he met Harold Matlock ("Matlock"), the job foreman, at the shop each day and the two went to the Brownsville job together. While working in Brownsville, Woosley was not required to pick up or load materials; he received no instructions 2
Madison County Workers Compensation Panel 10/30/96