Workers Compensation Panel Opinions

Format: 10/24/2014
Format: 10/24/2014
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
Lumbermens Mutual Casualty Insurance Company and Schering-Plough Health Care Products, Inc. v. Willie Gwen Smith
02S01-9511-CV-00110
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. D'Army Bailey,
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. Plaintiffs filed suit seeking a determination that defendant is not entitled to workers' compensation benefits. They appeal from the trial court's finding that she is entitled to benefits.
Shelby County Workers Compensation Panel 10/23/96
Lumbermens Mutual Casualty Insurance Company and Schering-Plough Health Care Products, Inc. v. Willie Gwen Smith
02S01-9511-CV-00110
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. D'Army Bailey,
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. Plaintiffs filed suit seeking a determination that defendant is not entitled to workers' compensation benefits. They appeal from the trial court's finding that she is entitled to benefits.
Shelby County Workers Compensation Panel 10/23/96
Darla Holt v. National Union Fire Ins. Co.
03S01-9601-CV-00003
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. John A. Turnbull,
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 3% permanent partial disability to the body as a whole. Defendant challenges the permanency of the injury and the methodology used by the trial judge to reach his finding. We affirm the judgment of the trial court. Plaintiff, 28, has a GED and has been trained as a certified nursing technician. Most of her work experience has been in this area. She was involved in a car accident in 1988 which eventually led to a total right hip replacement in July 1992 due to avascular necrosis. Plaintiff injured her back lifting a patient on November 7, 1993. Plaintiff was treated by Dr. Boyd D. Matthews, a chiropractor, who testified in this case by deposition. He opined that plaintiff had central disc protrusions at L4- L5 and L5-S1 based upon his examination, plaintiff's complaints and the results of various imaging studies. He assigned plaintiff a permanent impairment rating of 33% to the body as a whole. He arrived at this impairment rating by rating various impairment factors and compiling them under the AMA Guides. Dr. Robert H. Haralson, III, an orthopedic surgeon, examined the plaintiff at the request of the defendant and testified by deposition. He opined that, although plaintiff certainly had a back injury, she did not retain any permanent impairment. He acknowledged that plaintiff had protruding discs at L4 and L5; however, he opined that they did not impinge on plaintiff's nerves and that they pre- existed her back injury, based on his review of CT scans taken before and after the work- related injury. The trial judge discredited the testimony of Dr. Boyd D. Matthews. With Dr. Matthew's testimony discredited, there was no medical testimony upon which to base a medical impairment finding. The trial judge, in his ruling, found, based upon 2
Cumberland County Workers Compensation Panel 10/23/96
Geneva Hicks v. Emerson Motor Company
02S01-9602-CH-00022
Authoring Judge: Joe C. Loser, Jr., Special 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 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 contends the evidence preponderates against the findings of the trial court with respect to causation and permanency. The panel finds the preponderance of the evidence to be contrary to the finding of the trial court with respect to causation. The employee or claimant, Geneva Hicks, is 45 with an eleventh grade education. She has worked at a day care center, caring for small children, in a clothing factory and as a fruit packer. She has worked in various jobs for the employer, Emerson, since 198. She has suffered from hoarseness and shortness of breath at work since about 1992, for which she has seen numerous doctors. In the course of her work for Emerson, she was exposed to various fumes. The employer has attempted to accommodate her by transfer to different departments and by the use of fans. She finally commenced this action for workers' compensation benefits for a claimed occupational disease, which she labeled allergic bronchitis. She was referred by her attorney to Dr. A. Clyde Heflin, Jr., who saw her on several occasions and opined in his deposition testimony that she was possibly having asthmatic attacks at work. The doctor was given a list of chemicals and asked and answered as follows: Q. ...(A)t this point in time, do you have an opinion, based upon a reasonable degree of medical certainty, as to what connection this lady's job place has as to her asthmatic condition? A. The list of substances that I've been supplied have numerous items which are -- and maybe we need to regress a second. The workplace environment, as far as causing asthma, you have to understand that asthma we now consider to be this hyper-reactive or irritable state of the lungs; and that is caused or generated by someone or a substance causing what we call an inflammatory condition or direct irritation of the lungs. So there is a long list of substances now known in the workplace that actually can induce asthma; and the classic one of these are TDI's, or diasocyanates, which are used in the plastics industry, for instance. The epoxy resins, which I don't see here specifically listed, but are often used in electrical manufacturing, can cause this as well. 2
Gibson County Workers Compensation Panel 10/23/96
Geneva Hicks v. Emerson Motor Company
02S01-9602-CH-00022
Authoring Judge: Joe C. Loser, Jr., Special 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 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 contends the evidence preponderates against the findings of the trial court with respect to causation and permanency. The panel finds the preponderance of the evidence to be contrary to the finding of the trial court with respect to causation. The employee or claimant, Geneva Hicks, is 45 with an eleventh grade education. She has worked at a day care center, caring for small children, in a clothing factory and as a fruit packer. She has worked in various jobs for the employer, Emerson, since 198. She has suffered from hoarseness and shortness of breath at work since about 1992, for which she has seen numerous doctors. In the course of her work for Emerson, she was exposed to various fumes. The employer has attempted to accommodate her by transfer to different departments and by the use of fans. She finally commenced this action for workers' compensation benefits for a claimed occupational disease, which she labeled allergic bronchitis. She was referred by her attorney to Dr. A. Clyde Heflin, Jr., who saw her on several occasions and opined in his deposition testimony that she was possibly having asthmatic attacks at work. The doctor was given a list of chemicals and asked and answered as follows: Q. ...(A)t this point in time, do you have an opinion, based upon a reasonable degree of medical certainty, as to what connection this lady's job place has as to her asthmatic condition? A. The list of substances that I've been supplied have numerous items which are -- and maybe we need to regress a second. The workplace environment, as far as causing asthma, you have to understand that asthma we now consider to be this hyper-reactive or irritable state of the lungs; and that is caused or generated by someone or a substance causing what we call an inflammatory condition or direct irritation of the lungs. So there is a long list of substances now known in the workplace that actually can induce asthma; and the classic one of these are TDI's, or diasocyanates, which are used in the plastics industry, for instance. The epoxy resins, which I don't see here specifically listed, but are often used in electrical manufacturing, can cause this as well. 2
Gibson County Workers Compensation Panel 10/23/96
Insurance Company of North America v. Ronnie Storie
01S01-9602-CV-00037
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Conrad E. Troutman,
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 is whether the evidence preponderates against the trial court's finding that the employee's injury was proximately caused by intoxication. As discussed below, the panel has concluded the judgment should be reversed and the case remanded for an award of benefits. The claimant or employee, Storie, is forty-five years old and has an eighth grade education. On March 18, 1993, he reported to work at 6:3 p.m. at Kentucky Apparel to perform his usual duties as a maintenance mechanic. During the course of the shift, he needed to obtain some copper tubing and light bulbs to perform his duties. Those supplies were stored above a dropped ceiling above the maintenance office and accessible by a ladder and some loose boards. The claimant negotiated the ladder without a problem, but slipped and fell when one of the loose boards moved. He fell through the ceiling and onto a concrete floor in the men's rest room below, frightening a user, who beat a hasty exit and reported the accident. The claimant suffered multiple injuries, including a broken arm and back injury. We find in the record no direct evidence the claimant was intoxicated at the time. In fact, he had apparently performed his duties satisfactorily until the accident occurred. The injurious accident occurred shortly before 2:45 a. m. on March 19th. After some delay, he was driven to the Fentress County Hospital by a co-worker, arriving at about 3: a. m. When no doctor was available to treat his arm injury, he was transported to the Putnam County Hospital. When he arrived there at about 6:3 a. m., he smelled of alcohol and a blood alcohol test revealed an alcohol content of approximately .2 percent. The claimant insists he consumed the alcohol, retrieved from his own vehicle at the plant and provided by a friend while waiting for medical attention, after the accident, to help relieve pain associated with his injuries. The trial court disallowed the claim as being proximately caused by intoxication. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Fentress County Workers Compensation Panel 10/22/96
Robert Lively v. Textron, Inc.
01S01-9604-CH-00070
Authoring Judge: Robert S. Brandt, Senior Judge
Trial Court Judge: Hon. Robert E. Corlew, III,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The plaintiff appeals from the trial court's finding that the permanent impairment did not result from 1992 injuries at Textron Aerostructures. Finding no error in the trial court's decision, we affirm. Dr. Wesley Coker started treating the plaintiff in March 1994 for herniated discs that were causing nerve root pressure. The plaintiff was in bad shape when he first saw him, according to Coker, as he had to be helped into the doctor's office and told the doctor about two months of excruciating pain. After switching to the care of a chiropractor, the plaintiff returned to Coker who performed surgery in June 1994. Dr. Coker testified that the plaintiff suffers a 13% whole body impairment. But Dr. Coker did not offer any testimony about what caused the plaintiff's back trouble. The issue in this case is whether the plaintiff established by a preponderance of the evidence that his impairment resulted from two injuries at Textron, one on March 5, 1992 and another on October 3, 1992. The trial court decided that the plaintiff did not prove his case, and there is ample evidence to support the decision. The plaintiff and his wife were injured in a car wreck on the way to work on the morning of February 1, 1994. The plaintiff had worked regularly before the accident, but did not work any after it. This tends to suggest that the car wreck, not the injuries years earlier, caused the back trouble Dr. Coker treated. The plaintiff called Textron following the wreck to report that he was not coming to work. The reason, he said, was that he slipped a disc in his back while -2-
Rutherford County Workers Compensation Panel 10/22/96