Workers Compensation Panel Opinions

Format: 03/02/2015
Format: 03/02/2015
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
Barbara Wallace v. Cadillac Curtain Company
02S01-9510-CH-00099
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. John Hill Chisholm
This worker's compensationappeal has been referred to the special worker's 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. Trial in this matter was conducted February 9, 1995. On May 22, 1995, the Chancellor entered a final judgment denying compensation to plaintiff and dismissing her lawsuit.
Tipton County Workers Compensation Panel 10/30/96
Charles Leroy Stafford v. Mid-America Corporation and Larry Brinton, Jr.
03S01-9512-CH-00132
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Frederick D.
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 presented by this appeal involves the extent of the claimant's permanent disability. The panel concludes thejudgment should be modified as provided below. The employee or claimant, Stafford, is forty-eight with a ninth grade education. On December 23, 1993, he suffered a compensable injury to his neck and arm, for which he received medical treatment and lost time from work. The treating physician assigned a permanent impairment rating of 3% to the whole body and released him to return to work in August of 1994 with no restrictions. From a previous injury, the claimant had received an award based on ninety-five percent to the body as a whole. The chancellor awarded permanent partial disability benefits on the basis of five percent to the body as a whole, reasoning that the claimant had not yet become rehabilitated from his previous injury. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Knox County Workers Compensation Panel 10/30/96
Harley R. Rucker v. Rockwood Electric Utilities
03S01-9511-CH-00127
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Frank V. Williams,
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 was injured when he fell and hit his arm on a buzz saw while cutting trees along utility lines as an employee of Woodland Tree Service, which had a contract to cut the trees for Rockwood Electric Utilities. The trial judge dismissed plaintiff's complaint, finding that Rockwood Electric Utilities was not plaintiff's statutory employer under TENN. CODE ANN. _ 5-6- 113. However, he found plaintiff to have sustained a 45% permanent partial disability to his right hand. We reverse the judgment and remand the case to the trial court. Plaintiff was hired by Woodland Tree Service to help fulfill Woodland's contract with Rockwood Electric Utilities. The agreement between Woodland Tree Service and Rockwood Electric Utilities was in the form of a written contract which was introduced at trial. Plaintiff reported every morning to Rockwood Electric Utilities where he met with Don White, a supervisor at Rockwood, to learn whether he should continue working on the present job or if he needed to work on some emergency project. He would also pick up a "bucket truck" owned by Rockwood to be used in cutting trees. Woodland provided all of the other equipment used by its employees. Occasionally, Rockwood supervisors would come to the site where Woodland employees were working to check on the progress of the work, occasionally telling the employees to hurry up or moving them elsewhere to a "hot spot." Woodland had absolute authority to hire and fire its own employees. Under the contract between the parties, Rockwood reserved the right to provide equipment and materials at a lower cost if those provided by Woodland were too high. Woodland paid its employees directly but according to a schedule of wages set by Rockwood. Woodland was required to notify Rockwood of changes in wage rates. Under their contract, Rockwood reserved the right to inspect Woodland's work and audit its books. The contract also provided that Woodland employees could not enter the area where power lines were located unless 2
Knox County Workers Compensation Panel 10/30/96
William O. Worley, Jr. v. Tecumseh Products Company
01S01-9509-CV-00160
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. Buddy D. Perry,
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. In this case, the trial court awarded 45% permanent partial disability to the right arm. Defendant contends that the evidence does not support the percentage of disability awarded and requests that this court reduce and amend the judgment of the trial court accordingly. The Defendant also contends that the trial court erred in accrediting the testimony of Plaintiff's expert witness over the testimony of the treating physician. The final issue is whether the trial court erred in awarding discretionary costs for the deposition of Plaintiff's expert medical witness. The Defendant also raises the issue of whether the trial court erred in awarding a lump sum. As the benefits have now accrued, this issue is moot. On June 19, 1992, Plaintiff injured his right arm and wrist while working on a machine. Plaintiff is 48 years old and has a high school education. His work experience consists of working in the parts department, as a mechanic, as a tool and die worker, on a surveying crew, as a fire fighter, as a guard, and as a water pipeline repairer. Each of these jobs required heavy manual labor and the use of Plaintiff's arms and hands. Plaintiff had been employed at Tecumseh for approximately a year and a half when he sustained the injury. Dr. L. L. Carter, Jr. treated the Plaintiff after he was injured. Dr. Carter first examined Plaintiff on July 7, 1992. Dr. Carter testified, by deposition, that the nerve conduction tests showed elbow nerve and wrist nerve damage. Initially, Dr. Carter treated this condition conservatively, with a wrist splint, with no improvement. On August 31, 1992, Dr. Carter performed ulnar nerve decompression and submuscular transposition. At the same time, carpal tunnel release in the right hand and a nerve graft to the neuroma on the right wrist were performed. Three days later, Plaintiff was told to return to light work. Plaintiff was returned to regular work on December 15, 1992. Dr. Carter did not see Plaintiff again until January 8, 1993, at the request of
Sequatchie County Workers Compensation Panel 10/25/96
Alva Marie Reynolds v. Wal-Mart Stores, Inc.
01S01-9509-CH-00172
Authoring Judge: Erry L. Smith, Special Judge
Trial Court Judge: Hon. John W. Rollins, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225 (e)(3) for hearing and reporting findings of fact and conclusions of law to the Supreme Court. Alva Marie Reynolds, the plaintiff- employee, appeals the decision of the Coffee County Chancery Court denying her relief on her worker's compensation claim. On appeal, the sole issue is whether the trial court erred in finding that the plaintiff failed to carry the burden of proving that she sustained an injury arising out of her employment. The trial court found plaintiff 's injury was the result of a pre-existing idiopathic condition. On January 5, 1993, the plaintiff, who was at that time sixty-two years old, sustained an injury to her ankle when she fell at her place of employment, Wal- Mart. The plaintiff had worked at Wal-Mart in diverse capacities for eleven years before her accident, and at the time of her injury, she had been working in the fitting room area for a couple of years. In addition to monitoring the clothing which was brought in and out of the fitting room, she answered Wal-Mart's incoming calls, made announcements, and paged employees within the store. Regarding her fall, the plaintiff testified that, after being told to take a hurried break, she rushed out of the fitting room and fell at the point that the floor changed from carpet to tile. She testified that she had not previously experienced numbness in her legs nor had she ever fallen at work or home before this incident. The plaintiff worked the remainder of the day and did not see a doctor until the next day when her ankle was diagnosed as being broken. On cross-examination, the plaintiff acknowledged that in two depositions taken after the accident, she did not mention that she was in a hurry at the time that she fell. She explained that she did not remember this until later. However, in a deposition 2
Coffee County Workers Compensation Panel 10/25/96
Phillip L. Pyrdum v. Teledyne Systems Company Inc., Teledyne Lewisburg
01S01-9601-CH-00009
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. Tyrus H. Cobb
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. _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Marshall County Workers Compensation Panel 10/25/96
Neva Jewel Milam v. Hca Health Systems, Inc. d/b/a Centennial Medical Center
01S01-9601-CH-00004
Authoring Judge: Joe C. Loser, Jr., Special 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. 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 contends (1) the award of permanent partial disability benefits is inadequate and (2) the chancellor "erred as a matter of law by deciding, before any evidence had been heard or any witnesses testified, that the on-the-job accident had only a tangential relationship with" her injury. The employer seeks dismissal of the appeal because the claimant did not file a statement of the evidence and was not entitled to a copy of the transcript of the evidence. Because a transcript is part of the record on appeal, the issue raised by the employer must necessarily be considered first. Unlike some other jurisdictions, Tennessee does not provide official court stenographers for civil trials. Instead, it is customary in this state that the parties to civil litigation will engage a stenographer and pay a per diem for stenographic services. Those parties who participate in the per diem may, for an additional fee, order from the stenographer a transcript of the evidence for use on appeal in case of an adverse decision in the trial court. The stenographer does not customarily make the transcript available to a party who did not participate in payment of the per diem. It is a matter of contract among the parties to the litigation and the non-party stenographer; and a party who does not join in the engagement and payment of a stenographer has no contract right to require the stenographer to transcribe the record which is therefore unavailable until made available on terms satisfactory to both the stenographer and the party or parties who engaged the stenographer. See Beef N' Bird of America, Inc. v. Continental Casualty Company, 83 S.W.2d 234 (Tenn. App. 199). Instead, a non-participating party may prepare a narrative statement of the evidence for use on appeal. The procedure for including a statement of the evidence in the record on appeal is provided by Tenn. R. App. P. 24(c). We find no statement of the evidence in the record. In this case, the employer engaged the services of a stenographer - or court reporter - in the trial court and paid the full per diem. The claimant did not participate. When the chancellor issued his decision, however, she was dissatisfied with the outcome and decided to appeal. Instead of preparing a statement of the evidence, she applied to the trial court for an order requiring the employer to make a transcript available to her. The trial court granted the motion. Appellate rules do not require that a party who has assumed the burden of providing a court reporter at trial make available that reporter's work for a party who did not join in providing the reporter; and, in the absence of unusual circumstances, the rules do not permit a party to see how his case comes out before deciding whether to share in the reporter's fees. One who follows that course runs the risk of not having a verbatim record available. See Estate of 2
Davidson County Workers Compensation Panel 10/23/96