Workers Compensation Panel Opinions

Format: 08/21/2014
Format: 08/21/2014
Ralph D. West v. Sonic Drive-In and Anco Interstate Insurance Company
01S01-9603-CH-00054
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. C.K. Smith,
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 alleged that he injured his back on November 27, 1991 while employed as a cook. He sought medical treatment about one month later and in course was referred to Dr. Fonda Bondurant, an orthopedic surgeon in Lebanon, Tennessee, who performed a hemilaminectomy and discectomy on January 27, 1992. The surgery was successful, and the plaintiff was released to return to work on March 31, 1992. Utilizing the AMA Guidelines, Dr. Bondurant gave the plaintiff an impairment rating of eight percent "strictly because he had surgical intervention performed." This case has been twice tried. The first trial was held on April 19, 1993 and ended with a non-suit after the plaintiff and his wife testified. The second trial was held on October 4, 1994 resulting in a finding that the plaintiff had a 32 percent vocational impairment. The defendant appeals and presents for review the issues of notice, occurrence, injury and disability. An issue involving the admission of certain Social Security records is also presented. Our review is de novo on the record, accompanied with the presumption that the findings of fact of the trial court are correct unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2). At the outset, we are constrained to observe that this 38-year-old man has testified three times; once upon discovery and twice in open court. His testimony is inconsistent and obviously underwent considerable fine-tuning during the interim between trials. The Chancellor expressed his dissatisfaction with certain aspects of the case, but in the end resolved the issues of notice and injury favorably to the plaintiff, chiefly because a reputable orthopedic surgeon took a history from the plaintiff two months after the injury and performed major corrective surgery on him. In any event the Chancellor is the best judge of the credibility of the plaintiff and we 2
Smith County Workers Compensation Panel 10/17/96
Shirley Diane Trail v. Royal Insurance Company and Ckr Industries, Inc.,
01SO1-9505-CH-00071
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. Jeffrey F. Stewart
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. Our review is de novo on the record accompanied by the presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The trial court awarded Ms. Trail $19,421. permanent partial disability benefits, representing one-hundreed (1) weeks at the benefit rate of $194.21 per week, or twenty-five percent (25%) to the body as a whole; and future medical benefits pursuant to the Tennessee Workers' Compensation Act. The trial court also allowed attorneys fees of twenty percent (2%) of the award, in the amount of $3,884.2, to be paid in a lump sum. The Appellant contends that the trial court erred in: 1. Finding that a vocational disability based upon a permanent medical restriction, with medical testimony of no medical impairment rating in accordance with the A.M.A. Guidelines for Evaluation of Permanent Impairment, constitutes a compensable permanent partial disability under the Workers' Compensation Act. 2. Awarding permanent partial disability benefits to the Plaintiff that were excessive and against the weight of the evidence. We affirm the judgment of the trial court. Ms. Trail filed her complaint in the Chancery Court for Franklin County, Tennessee, against her employer, Defendant CKR Industries, seeking to recover unpaid benefits under the Tennessee Workers' Compensation Act for work-related injuries. Ms. Trail alleged that she suffered injuries as a result of exposure to chemicals in use at the CKR Plant. The case was consolidated with three (3) other cases for trial due to significant similarities in the cases. The opinion of the Court on the first issue is contained in the case of Angela K. Hill v. Royal Insurance Company and CKR Industries, Inc., No. 1S1-955-CH-71, filed simultaneously with this opinion. The Court held that the trial court did not err in finding that a vocational disability existed based upon the testimony of the medical experts that a permanent medical restriction existed which constitutes a permanent partial disability under the Worker's Compensation Act, even though no medical impairment rating was given by any of the
Franklin County Workers Compensation Panel 10/17/96
Kerry Alan Napier v. Cincinnati Casualty Insurance Company and North Central Telephone Cooperative
01S01-9604-CH-00063
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. C.K. Smith,
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 issue in this case is whether the award of 75 percent disability to the plaintiff's right hand is in accord with the preponderance of proof. Appellate review is confined to a review de novo on the record, accompanied by a presumption that the trial judge's findings of fact are correct unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2). A concomitant rule is that we are as enabled as the trial judge to judge the probative worth of depositional testimony. Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). The plaintiff's job with the telephone company was that of a cable splicer and repairman. During the course of his employment, he sustained a laceration to the extensor tendon of his right hand, on October 25, 1994, involving the index, middle and ring fingers, which was repaired by Dr. Keith Morrison, an orthopedic surgeon in Bowling Green, Kentucky, under whose care he remained until February 22, 1995. On that date, Dr. Morrison noted: Mr. Napier is now 4 months status post extensor tendon repair on his right hand. Four tendons repaired to the index finger, slips to the middle and ring finger on the right hand. His EXAM today shows some improvement. He still lacks full extension on the index finger by about 2dg when his wrist is brought into extension. With the wrist in the flexed position, he has full extension of the hand. He has full flexion of all the digits with his only limitation being the lack of full extension on the index finger with his wrist in the above mentioned extension position. They would like to get a second opinion for insurance reasons so we are going to see him back in 1 month. At that time he will be 5 months out. I recommend tenolysis exploration. If he is still dissatisfied with the result. Overall, he has made a big improvement, having had no active extension of the fingers on repair. He remains neurovascularly intact. Otherwise, no loss of sensation. The plaintiff was later seen, on March 15, 1995 by Dr. Stephen Pratt, a specialist in reconstructive hand surgery, because of a 3 degree lag in the index finger. Further tendon repairs were undertaken to correct the lag. Dr. Pratt testified 2
Macon County Workers Compensation Panel 10/17/96
Johnny Jobe v. M. K. Ferguson and Second Injury Fund
03S01-9512-CV-00131
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. James B. Scott, Jr.,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The issue in this appeal is whether the award of permanent disability benefits is excessive. As discussed below, we have concluded the judgment should be modified. The employee or claimant, Jobe, was 59 years old at the time of the trial. He has a ninth grade education and is a skilled carpenter, capable of reading plans and performing supervisory duties. On May 5, 1993, he fell at work and was slightly injured, but continued to work. On August 24, of the same year, he injured his lower back while lifting a cabinet at work. He was treated by Dr. David Hauge for a herniated lumbar disc from the second injury and a herniated cervical disc, possibly from the earlier injury. Dr. Hauge assigned a permanent impairment rating of seven percent to the whole body. Dr. Berta Bergia, whom the claimant saw for an examination and evaluation, assigned permanent impairment ratings of five percent for the cervical disc and ten percent for the lumbar disc. Dr. Bergia said the claimant should not do more than sedentary work. The claimant has not returned to work. The trial judge awarded permanent partial disability benefits based on thirty percent to the body as a whole for the May 5th injury and one hundred percent for the August 24th injury. Because the combined award totaled one hundred thirty percent, the employer was ordered to pay on the basis of one hundred percent and the remaining thirty percent was assessed against the 2
Knox County Workers Compensation Panel 10/17/96
Angela K. Hill v. Royal Insurance Company and Ckr Industries, Inc.
01SO1-9505-CH-00071
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. Jeffrey F. Stewart
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. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The trial court awarded Plaintiff Hill $16,212. permanent partial disability benefits, representing eighty (8) weeks at the benefit rate of $22.65 per week, or twenty percent (2%) permanent partial disability to the body as a whole; and future medical expenses pursuant to the Tennessee Workers' Compensation Act. The trial court also allowed an attorneys fee of twenty percent (2%) of the award, in the amount $3,242.4, to be paid in lump sum. The appellant contends that the trial court erred in: 1. Finding that a vocational disability based upon a permanent medical restriction, with medical testimony of no medical impairment rating in accordance with A.M.A. Guidelines for Evaluation of Permanent Impairment, constitutes a compensable permanent partial disability under the Workers' Compensation Act. 2. Awarding permanent partial disability benefits to the Plaintiff that were excessive and against the weight of the evidence. We affirm the judgment of the trial court. Ms. Hill filed the complaint in the Chancery Court for Franklin County, Tennessee, against her employer, Defendant CKR Industries, seeking to recover unpaid benefits under the Tennessee Workers' Compensation Act for work-related injuries. Ms. Hill alleged that she suffered injuries as a result of exposure to chemicals in use at the CKR Plant. This case was consolidated with three (3) additional cases for trial due to significant similarities in the cases. At CKR, Ms. Hill worked as a Mucote sprayer. Mucote is a sealant, used to prevent rubber weather stripping from dryingout, and contains two solvents, toluene and methyl ethyl ketone. Ms. Hill began suffering from nose bleeds, difficulty in breathing, upset stomachs, and dizzy spells while at work. She complained to the human resources supervisor and safety and environmental coordinator about her symptoms and was moved to another position. When she was later returned to the spraying job,
Franklin County Workers Compensation Panel 10/17/96
Barbara Ann Holt v. Royal Insurance Company and Ckr Industries, Inc.
01SO1-9505-CH-00071
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. Jeffrey F. Stewart
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. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The trial court awarded Ms. Holt $13,196.8 permanent partial disability benefits, representing eighty (8) weeks at the benefit rate of $164.96 per week, or twenty percent (2%) to the body as a whole; and future medical benefits pursuant to the Tennessee Workers' Compensation Act. The trial court also allowed attorneys fees of twenty percent (2%) of the award, in the amount of $2,639.36, to be paid in lump sum. The appellant contends that the trial court erred in: 1. Finding that a vocational disability based upon a permanent medical restriction, with medical testimony of no medical impairment rating in accordance with A.M.A. Guidelines for Evaluation of Permanent Impairment, constitutes a compensable permanent partial disability under the Workers' Compensation Act. 2. Awarding permanent partial disability benefits to the Plaintiff that were excessive and against the weight of the evidence. We affirm the judgment of the trial court. Ms. Holt filed her complaint in the Chancery Court for Franklin County, Tennessee, against her employer, Defendant CKR Industries, seeking to recover unpaid benefits under the Tennessee Workers' Compensation Act for work-related injuries. Ms. Holt alleged that she suffered injuries as a result of exposure to chemicals in use at the CKR Plant. The case was consolidated with three (3) other cases for trial due to significant similarities in the cases. The opinion of the Court on the first issue is contained in the case of Angela K. Hill v. Royal Insurance Company and CKR Industries, Inc., No. 1S1-955-CH-71, filed simultaneously with this opinion. The Court held that the trial court did not err in finding that a vocational disability existed based upon the testimony of the medical experts that a permanent medical restriction existed which constitutes a permanent partial disability under the Worker's Compensation Act, even though no medical impairment rating was given by any of the medical experts.
Franklin County Workers Compensation Panel 10/17/96
Billy Gibson v. Aetna Casualty and Surety Co. and Wolf Tree Experts, Inc.,
03S01-9602-CV-00012
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Ben W. Hooper, Ii,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff, Billy Gibson, was awarded 1 percent permanent disability benefits by the Circuit Court of Sevier County as a result of an accident on June 24, 1991, when he fell backward from a truck to the ground injuring his back. Defendants, Wolf Tree Experts, Inc. and The Aetna Casualty and Surety Company, have appealed insisting the evidence preponderates against the finding of total disability. Plaintiff is 4 years of age with a third grade education; he cannot read or write and was employed as a tree trimmer by defendant employer for almost twenty years; he had back surgery (ruptured disc) in 1978 but recovered sufficiently to work full time without any real problems; his injury as a result of the June 1991 accident resulted in another ruptured disc and this surgery did not appear to be successful; another surgical procedure was performed to remove bone fragments; he told the trial court he was not able to return to work as a tree trimmer or do any other type work on a regular basis; he admitted he had worked at what he called "piddling jobs" and said he was usually on the heating pad for several days after activity of this nature; his complaints of pain continued up to the date of the trial. Plaintiff's treating physician and surgeon was Dr. Archer W. Bishop, Jr., who testified by deposition. Dr. Bishop testified plaintiff continued to complain of pain during his entire treatment period, including the numerous visits after the last surgical procedure. He said at one point another surgery was contemplated but was not performed because he felt the chance of improvement was small. He gave plaintiff a 12 percent medical impairment and said he should avoid repetitive bending, stooping and heavy lifting of more than forty pounds. Craig R. Colvin, a disability management consultant, testified by 2
Sevier County Workers Compensation Panel 10/17/96
Donna Forrester v. Oshkosh B'Gosh and Travelers Insurance Company
01S01-9511-JP-00206
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. Anthony L. Sanders
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.
Humphreys County Workers Compensation Panel 10/17/96
Helen Carroll v. Moore and Associates and Travelers Insurance Company
01S01-9512-CV-00221
Authoring Judge: William S. Russell, Special Judge
Trial Court Judge: HON. JOHN W. ROLLINS, JUDGE
Carroll County Workers Compensation Panel 10/17/96
Juanita D. Bean v. Royal Insurance Company and Ckr Industries, Inc.
01SO1-9505-CH-00071
Authoring Judge: Robert L. Childers, Special Judge
Trial Court Judge: Hon. Jeffrey F. Stewart
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. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The trial court awarded Ms. Bean $8,831.4 permanent partial disability benefits, representing forty-eight (48) weeks at the benefit rate of $183.98 per week, or twelve percent (12%) to the body as a whole; future medical expenses pursuant to the Tennessee Workers' Compensation Act; and reasonable costs of Dr. Rodriguez services. The trial court also allowed attorneys fees of twenty percent (2%) of the award, in the amount of $1,766.21, to be paid in lump sum. The appellant contends that the trial court erred in: 1. Finding that a vocational disability based upon a permanent medical restriction, with medical testimony of no medical impairment rating in accordance with the A.M.A. Guidelines for Evaluation of Permanent Impairment, constitutes a compensable permanent partial disability under the Workers' Compensation Act. 2. Awarding permanent partial disability benefits to the Plaintiff that were excessive and against the weight of the evidence. We affirm the judgment of the trial court. Ms. Bean filed her complaint in the Chancery Court for Franklin County, Tennessee, against her employer, Defendant CKR Industries, seeking to recover unpaid benefits under the Tennessee Workers' Compensation Act for work-related injuries. Ms. Bean alleged that she suffered injuries as a result of exposure to chemicals in use at the CKR Plant. The case was consolidated with three (3) other cases for trial due to significant similarities in the cases. The opinion of the Court on the first issue is contained in the case of Angela K. Hill v. Royal Insurance Company and CKR Industries, Inc., No. 1S1-955-CH-71, filed simultaneously with this opinion. The Court held that the trial court did not err in finding that a vocational disability existed based upon the testimony of the medical experts that a permanent medical restriction existed which constitutes a permanent partial disability under the W orker's Compensation Act, even though no medical impairment rating was given by any of the
Franklin County Workers Compensation Panel 10/17/96
Thomas H. Hartley v. Snap-On Tools Corporation
03S01-9603-CH-00019
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. G. Richard Johnson,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issue presented is whether the trial court erred in finding that the plaintiff sustained a 35 percent disability to his right arm as a result of a job-related accident. The standard of review is de novo on the record accompanied with the presumption that the judgment is correct unless the evidence otherwise preponderates. TENN. R. APP. P. 13(d); T.C.A. _ 5-6-225(e)(2). The parties stipulated that the "plaintiff had incurred work-related bilateral carpal tunnel syndrome." The finding of disability to the left arm is not contested on appeal; the defendant argues that a finding of 35 percent to the right arm is excessive. The treating physician, Dr. Gorman, testified that the plaintiff's right arm was asymptomatic following corrective surgery and without impairment. Dr. Eric Roberts was employed by the plaintiff's attorney to examine and evaluate the plaintiff. He is a board-certified physical medicine specialist. He testified that he performed extensive testing of the plaintiff, reviewed the voluminous medical reports and believed that the plaintiff had a 2 percent impairment to his right arm, based on AMA Guidelines. The deposition of Dr. Roberts is unusually lengthy, and we have considered it in depth. Henson v. City of Lawenceburg, 851 S.W.2d 89, 812 (Tenn. 1993). The plaintiff apparently had some non-job-related problems with his right elbow which are not fully recounted in the record. The defendant argues that most, if not all, of any impairment to the plaintiff's right arm is attributable to these problems of which both experts were aware and considered. While we are able to asses the weight of testoimony by deposition as well as the trial judge, It is not within our province to substitute our judgment for that of the trial judge; and we cannot find that the evidence preponderates against his finding that the plaintiff sustained a 35
Washington County Workers Compensation Panel 10/16/96
Greene County, Tennessee v. Lisa Ward, Jarrod Ward and Jordan Ward
03S01-9510-CH-00116
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Dennis H. Inman
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. These cases were instituted by Greene County, Tennessee, plaintiff, against the dependents of William Guy Ward, deceased, and Robert John Desormeaux, deceased, defendants, to determine whether the deaths of the two individuals are compensable under the Workers' Compensation laws of our state. The trial court determined the claims were not compensable as their deaths did not arise out of and in the course of their employment. Defendants have appealed insisting the evidence preponderates against this finding. William Guy Ward and Robert John Desormeaux were part-time auxiliary officers of the Greene County Sheriff's Department. They died as a result of an airplane crash on the night of July 11, 1994, at about 11: p.m. The airplane was being operated by Officer Desormeaux and Officer W ard was riding as a passenger. The record indicates auxiliary officers received limited training as compared to the training of a regular certified deputy sheriff. As auxiliary officers, they were scheduled to work twice a month for 8-16 hours, and this assignment was on weekends because the Sheriff's Department was usually busier at this time during the week. Auxiliary officers were always assigned to work with a regular certified deputy sheriff on patrol and were paid $5. per hour when performing scheduled work. The evidence indicates an auxiliary officer could work at other times with permission but would not be compensated for this work activity. Officers Ward and Desormeaux had been auxiliary officers for about one year, and their work activity with the Sheriff's Department had been riding with and assisting a regular deputy on patrol. As auxiliary officers, they were bonded deputies. The Auxiliary Organization Manual Of The Greene County Sheriff's Department provided auxiliary personnel shall follow the direction of full-time 2
Greene County Workers Compensation Panel 10/15/96
Shelby Williams Industries v. Alton Sane
03S01-9601-CH-00004
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Dennis H. Inman,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff, Shelby Williams Industries, Inc., instituted suit against Defendant, Alton Sane, seeking a determination as to whether the defendant had sustained a work-related injury which was compensable. The Chancellor found the claim to be compensable and fixed defendant's permanent partial disability at fifty percent to the body as a whole. The employer has appealed insisting the evidence is not sufficient to support the award and that the evidence preponderates against the trial court's findings. The employee is forty years old and has a twelfth-grade education. He testified he sustained an injury on July 12, 1994, while assembling chair backs; he was using a two-wheel dolly and, as he rolled it, a chair frame started to slide off and he attempted to catch it with the dolly in one hand and the frame in the other hand; while in this position, he felt a jolt in his low back; the next morning his legs tingled, and there was a numb feeling. He was seen at the hospital emergency room and was released; he also saw the company physician and later an orthopedic surgeon; he returned to work on August 3, 1994. The employee told the court he was injured again on October 7, 1994, while doing the same type work; he said, while in a twisted position, he bent over to get a chair seat; as he was reaching for the seat, he sneezed, and it felt like he had been shot; he saw the company doctor again and the orthopedic surgeon, who diagnosed the problem as a ruptured disc; surgery was performed during November, 1994; and he had not been released to return to work as of the date of the trial on August 31, 1995. Dr. William Foster, an orthopedic surgeon, testified by deposition and stated he saw defendant shortly after both the July and October incidents; his opinion in July was that he had suffered a lumbar strain with a possible ruptured dis,c but he did not do further testing as his patient seemed to improve and returned to work; he 2
Hamblen County Workers Compensation Panel 10/15/96