Workers Compensation Panel Opinions

Format: 12/20/2014
Format: 12/20/2014
Patty Utley, Widow of Joe Henry Utley, Deceased v. Chester County Highway Department
02S01-9602-CH-00020
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Joe C. Morris,
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 only issue on appeal is whether the chancellor abused his discretion by commuting a portion of the permanent partial disability award to a lump sum. The panel finds the judgment should be affirmed. Joe Henry Utley died as a result of an injury by accident arising out of and in the course of his employment by the Chester County Highway Department. He left a widow, Patty Utley, and four dependent children. The widow and children were awarded dependents' benefits totaling $19,2., payable at the rate of $137.17 per week. The claimant and four children - and another child of hers - were living in a 6 square foot home. She applied to the trial court for a commutation of the award for the purpose of purchasing a larger home. The proof shows and the chancellor found that she is able to wisely manage her money. The trial court ordered $45,2. paid in a lump sum and the balance periodically, as provided by statute. The chancellor found further that moving into a larger home would be in the best interest of both the claimant and the dependent children and directed that the deed be drafted in such a way as would protect the interest of all the beneficiaries. The evidence does not preponderate against that finding. Upon application by a party and approval by a proper court, benefits which are payable periodically may be commuted to one or more lump sum payment(s), if the court finds such commutation to be in the best interest of the dependents of the deceased employee and that the party seeking a lump sum payment has the ability to wisely manage and control the commuted award. Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994). Such applications are not granted as a matter of course. Forkum v. Aetna Life & Casualty Insurance Company, 852 S.W.2d 23 (Tenn. 1993). The claimant has the burden of establishing, first, that a lump sum is in his or her best interest and, second, that he or she is capable of wisely managing and controlling a lump sum, but the decision whether to commute to a lump sum is within the discretion of the trial court. Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554 (Tenn. 1992). We have independently examined the record and find that the chancellor did not abuse his discretion in allowing the partial commutation in this case. The judgment is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Chester County Workers Compensation Panel 09/27/96
Patty Utley, Widow of Joe Henry Utley, Deceased v. Chester County Highway Department
02S01-9602-CH-00020
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Joe C. Morris,
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 only issue on appeal is whether the chancellor abused his discretion by commuting a portion of the permanent partial disability award to a lump sum. The panel finds the judgment should be affirmed. Joe Henry Utley died as a result of an injury by accident arising out of and in the course of his employment by the Chester County Highway Department. He left a widow, Patty Utley, and four dependent children. The widow and children were awarded dependents' benefits totaling $19,2., payable at the rate of $137.17 per week. The claimant and four children - and another child of hers - were living in a 6 square foot home. She applied to the trial court for a commutation of the award for the purpose of purchasing a larger home. The proof shows and the chancellor found that she is able to wisely manage her money. The trial court ordered $45,2. paid in a lump sum and the balance periodically, as provided by statute. The chancellor found further that moving into a larger home would be in the best interest of both the claimant and the dependent children and directed that the deed be drafted in such a way as would protect the interest of all the beneficiaries. The evidence does not preponderate against that finding. Upon application by a party and approval by a proper court, benefits which are payable periodically may be commuted to one or more lump sum payment(s), if the court finds such commutation to be in the best interest of the dependents of the deceased employee and that the party seeking a lump sum payment has the ability to wisely manage and control the commuted award. Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994). Such applications are not granted as a matter of course. Forkum v. Aetna Life & Casualty Insurance Company, 852 S.W.2d 23 (Tenn. 1993). The claimant has the burden of establishing, first, that a lump sum is in his or her best interest and, second, that he or she is capable of wisely managing and controlling a lump sum, but the decision whether to commute to a lump sum is within the discretion of the trial court. Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554 (Tenn. 1992). We have independently examined the record and find that the chancellor did not abuse his discretion in allowing the partial commutation in this case. The judgment is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Chester County Workers Compensation Panel 09/27/96
Lisa Hughes v. Mtd Products, Inc., Cub Cadet Division
02S01-9602-CH-00019
Authoring Judge: Per Curiam
Trial Court Judge: Hon. George Ellis, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supeme 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. Lisa Hughes, ("plaintiff") has appeal ed from the judgment of the trial court denying her claim for workers' compensation benefits on the grounds that she failed to carry her burden of proof as to any permanent partial disability. On appeal, the only issue presented by plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereafter stated, we find that it does not. Plaintiff was employed as an assembly line worker for MTD Products, Inc. ("defendant"), which were engaged primarily in building lawnmowers. In December 1992 she injured her neck and shoulder while lifting a lawnmower deck onto an assembly line. She was initially seen by Dr. White and then by Dr. Joseph P. Rowland, a neurosurgeon. Dr. Rowland found that her problems were muscular in origin and returned her to work with no restrictions and no permanent impairment on February 15, 1993. In April 1993, plaintiff claimed to have sustained a work-related injury to her low back while lifting a l awnmower frame onto a motor. At that time, plaintiff received outpatient treatment by Dr. Jack Pettigrew, who also referred her to Dr. Larry David Johnson, a local orthopedic surgeon. Dr. Johnson treated her as an outpatient, performing among other things x-rays, a CT scan, and myelogram, all of which were normal. On June 21, 1993, Dr. Johnson released her to return to work and confirmed that plaintiff could return to work for full duty with no permanent impairment on July 22, 1993. 2
Haywood County Workers Compensation Panel 09/27/96
Lisa Hughes v. Mtd Products, Inc., Cub Cadet Division
02S01-9602-CH-00019
Authoring Judge: Per Curiam
Trial Court Judge: Hon. George Ellis,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supeme 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. Lisa Hughes, ("plaintiff") has appeal ed from the judgment of the trial court denying her claim for workers' compensation benefits on the grounds that she failed to carry her burden of proof as to any permanent partial disability. On appeal, the only issue presented by plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereafter stated, we find that it does not. Plaintiff was employed as an assembly line worker for MTD Products, Inc. ("defendant"), which were engaged primarily in building lawnmowers. In December 1992 she injured her neck and shoulder while lifting a lawnmower deck onto an assembly line. She was initially seen by Dr. White and then by Dr. Joseph P. Rowland, a neurosurgeon. Dr. Rowland found that her problems were muscular in origin and returned her to work with no restrictions and no permanent impairment on February 15, 1993. In April 1993, plaintiff claimed to have sustained a work-related injury to her low back while lifting a l awnmower frame onto a motor. At that time, plaintiff received outpatient treatment by Dr. Jack Pettigrew, who also referred her to Dr. Larry David Johnson, a local orthopedic surgeon. Dr. Johnson treated her as an outpatient, performing among other things x-rays, a CT scan, and myelogram, all of which were normal. On June 21, 1993, Dr. Johnson released her to return to work and confirmed that plaintiff could return to work for full duty with no permanent impairment on July 22, 1993. 2
Haywood County Workers Compensation Panel 09/27/96
Danny J. Adams v. Liberty Mutual Insurance Company and Plumley Companies, Inc.
02S01-9512-CV-00132
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. C. Creed Mcginley,
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.
Henry County Workers Compensation Panel 09/27/96
Danny J. Adams v. Liberty Mutual Insurance Company and Plumley Companies, Inc.
02S01-9512-CV-00132
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. C. Creed Mcginley
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.
Henry County Workers Compensation Panel 09/27/96
National Healthcorp, L.P. v. James Puckett
01S01-9510-CV-00187
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Robert E. Corlew
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 employer filed this complaint asking the trial court to determine whether the employee sustained any permanent partial disability as a result of an incident at work in which he was in an elevator which fell or sped downward for ten floors. The trial court found that plaintiff sustained a work-related injury resulting in temporary disability but failed to meet his burden of proving permanent impairment and therefore was not entitled to permanent partial disability benefits. The court found that certain court-ordered temporary total disability benefits had been paid beyond the employee's period of temporary disability, and ordered the employee to reimburse the employer $3,826.32 for this overpayment. Further, the court ordered the employer to pay medical expenses for authorized physicians and the employee to pay medical expenses for treatment he secured on his own. An issue raised on briefs as to the characterization of benefits so as to affect Social Security payments was withdrawn by employee's counsel at oral argument and will not be discussed herein. We affirm the judgment of the trial court. The employee worked for this employer from 199 until February 1992, when he was involved in an on-the-job accident. On February 19, 1992, while he was in a company elevator, the elevator "fell" or traveled too quickly from the fourteenth to the fourth floor. The employee was tossed about inside the elevator, wrenching his shoulder and neck. The employee was treated by various physicians, some of whom were approved by the employer and some of whom he saw on his own. Dr. Richard Rogers, an orthopedic surgeon, found degenerative changes in plaintiff's cervical spine not caused by trauma. Dr. Arthur Cushman, neurosurgeon provided a second surgical opinion at the court's order and found no permanent impairment.
Rutherford County Workers Compensation Panel 09/13/96
National Healthcorp, L.P. v. James Puckett
01S01-9510-CV-00187
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Robert E. Corlew
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 employer filed this complaint asking the trial court to determine whether the employee sustained any permanent partial disability as a result of an incident at work in which he was in an elevator which fell or sped downward for ten floors. The trial court found that plaintiff sustained a work-related injury resulting in temporary disability but failed to meet his burden of proving permanent impairment and therefore was not entitled to permanent partial disability benefits. The court found that certain court-ordered temporary total disability benefits had been paid beyond the employee's period of temporary disability, and ordered the employee to reimburse the employer $3,826.32 for this overpayment. Further, the court ordered the employer to pay medical expenses for authorized physicians and the employee to pay medical expenses for treatment he secured on his own. An issue raised on briefs as to the characterization of benefits so as to affect Social Security payments was withdrawn by employee's counsel at oral argument and will not be discussed herein. We affirm the judgment of the trial court. The employee worked for this employer from 199 until February 1992, when he was involved in an on-the-job accident. On February 19, 1992, while he was in a company elevator, the elevator "fell" or traveled too quickly from the fourteenth to the fourth floor. The employee was tossed about inside the elevator, wrenching his shoulder and neck. The employee was treated by various physicians, some of whom were approved by the employer and some of whom he saw on his own. Dr. Richard Rogers, an orthopedic surgeon, found degenerative changes in plaintiff's cervical spine not caused by trauma. Dr. Arthur Cushman, neurosurgeon provided a second surgical opinion at the court's order and found no permanent impairment.
Rutherford County Workers Compensation Panel 09/13/96
Vicky Ladd v. Perma-View Processed Glass
01S01-9509-CH-00158
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Alex W. Darnell
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 injured her back on December 8, 1989 while working for defendant. The trial judge set the weekly benefit rate at $144.67, ordered defendant to pay certain discretionary costs and awarded plaintiff 35 percent permanent vocational disability. We affirm the trial judge's award of 35 percent permanent vocational disability and remand for further hearing on plaintiff's weekly benefit rate and discretionary costs. Plaintiff was injured at work on December 8, 1989 when a crate hit her in the back, resulting in a contusion of her left shoulder and subsequent symptomatic thoracic outlet syndrome and reflex sympathetic dystrophy. She was evaluated and treated by a number of doctors but has continued to have severe pain and other symptoms. Dr. W. D. Hudson saw plaintiff on the date of the accident and diagnosed brachial plexus contusion. When plaintiff continued to have severe pain, Dr. Hudson determined she had reflex sympathetic dystrophy from trauma to the left brachial plexus nerve fiber and referred her for neurosurgical evaluation and for treatment of chronic pain. He thought her permanent partial impairment was probably between twenty and thirty percent. Dr. Andrew Miller, orthopedic surgeon, treated plaintiff at the employer's request. He prescribed physiotherapy, heat, traction and an exercise program, with no improvement in plaintiff's symptoms. Dr. Miller diagnosed cervical degenerative arthritis at C-4 through C-6 and mild bulging disc at C-4/5, which he did not think were related to her work. Dr. John W. Klemin, chiropractor, diagnosed chronic cervicothoracic strain or sprain complicated by rotary scoliosis and vertebral subluxations resulting in thoracic outlet syndrome and thought the prognosis for recovery was guarded. Dr. Arthur Bond, neurosurgeon, evaluated plaintiff on August 8, 1991 and opined that plaintiff's history was compatible with thoracic outlet syndrome 2
Montgomery County Workers Compensation Panel 09/13/96
Vicky Ladd v. Perma-View Processed Glass
01S01-9509-CH-00158
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Alex W. Darnell
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 injured her back on December 8, 1989 while working for defendant. The trial judge set the weekly benefit rate at $144.67, ordered defendant to pay certain discretionary costs and awarded plaintiff 35 percent permanent vocational disability. We affirm the trial judge's award of 35 percent permanent vocational disability and remand for further hearing on plaintiff's weekly benefit rate and discretionary costs. Plaintiff was injured at work on December 8, 1989 when a crate hit her in the back, resulting in a contusion of her left shoulder and subsequent symptomatic thoracic outlet syndrome and reflex sympathetic dystrophy. She was evaluated and treated by a number of doctors but has continued to have severe pain and other symptoms. Dr. W. D. Hudson saw plaintiff on the date of the accident and diagnosed brachial plexus contusion. When plaintiff continued to have severe pain, Dr. Hudson determined she had reflex sympathetic dystrophy from trauma to the left brachial plexus nerve fiber and referred her for neurosurgical evaluation and for treatment of chronic pain. He thought her permanent partial impairment was probably between twenty and thirty percent. Dr. Andrew Miller, orthopedic surgeon, treated plaintiff at the employer's request. He prescribed physiotherapy, heat, traction and an exercise program, with no improvement in plaintiff's symptoms. Dr. Miller diagnosed cervical degenerative arthritis at C-4 through C-6 and mild bulging disc at C-4/5, which he did not think were related to her work. Dr. John W. Klemin, chiropractor, diagnosed chronic cervicothoracic strain or sprain complicated by rotary scoliosis and vertebral subluxations resulting in thoracic outlet syndrome and thought the prognosis for recovery was guarded. Dr. Arthur Bond, neurosurgeon, evaluated plaintiff on August 8, 1991 and opined that plaintiff's history was compatible with thoracic outlet syndrome 2
Montgomery County Workers Compensation Panel 09/13/96
Anthony S. Hopson v. Protein Technologies
02S01-9603-CV-00027
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Anthony S. Hopson,
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 only that the award of permanent partial disability benefits on the basis of fifty percent to the arm is excessive. The panels finds the award should be reduced to one based on thirty-five percent to the arm. The employee or claimant, Hopson, is forty-three with a high school education, one year of college and three years of military service as an aviation ordinance mechanic. On April 14, 1994, while working for Protein Technologies, he injured his left arm lifting a product weighing forty-four pounds. His doctor diagnosed lateral epicondylitis and acute olecranon bursitis, and prescribed injections, medication and physical therapy. The claimant reached maximum medical improvement on August 1, 1994, when the doctor assessed his permanent impairment at five percent to the left arm and released him to return to work with a weight lifting restriction of twenty pounds. The claimant first returned to light duty, then to a position earning as much as or more than before the injury. The trial judge awarded, among other things, permanent partial disability benefits based on fifty percent to the arm. 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). Once the causation and permanency of an injury have been established by expert testimony,the courts may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2); McCaleb v. Saturn Corp., 91 S.W.2d 412 (Tenn. 1995). From a consideration of the pertinent factors established by the proof in this case, the panel finds that the evidence preponderates against an award based on fifty percent to the arm and in favor of one based on thirty- five percent to the arm. The judgment of the trial court is modified accordingly, but otherwise affirmed. Costs on appeal are taxed to the plaintiff-appellee. 2
Shelby County Workers Compensation Panel 09/11/96
Anthony S. Hopson v. Protein Technologies
02S01-9603-CV-00027
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Anthony S. Hopson,
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 only that the award of permanent partial disability benefits on the basis of fifty percent to the arm is excessive. The panels finds the award should be reduced to one based on thirty-five percent to the arm. The employee or claimant, Hopson, is forty-three with a high school education, one year of college and three years of military service as an aviation ordinance mechanic. On April 14, 1994, while working for Protein Technologies, he injured his left arm lifting a product weighing forty-four pounds. His doctor diagnosed lateral epicondylitis and acute olecranon bursitis, and prescribed injections, medication and physical therapy. The claimant reached maximum medical improvement on August 1, 1994, when the doctor assessed his permanent impairment at five percent to the left arm and released him to return to work with a weight lifting restriction of twenty pounds. The claimant first returned to light duty, then to a position earning as much as or more than before the injury. The trial judge awarded, among other things, permanent partial disability benefits based on fifty percent to the arm. 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). Once the causation and permanency of an injury have been established by expert testimony,the courts may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomical impairment, for the purpose of evaluating the extent of a claimant's permanent disability. Tenn. Code Ann. section 5-6-241(a)(2); McCaleb v. Saturn Corp., 91 S.W.2d 412 (Tenn. 1995). From a consideration of the pertinent factors established by the proof in this case, the panel finds that the evidence preponderates against an award based on fifty percent to the arm and in favor of one based on thirty- five percent to the arm. The judgment of the trial court is modified accordingly, but otherwise affirmed. Costs on appeal are taxed to the plaintiff-appellee. 2
Shelby County Workers Compensation Panel 09/11/96
Larry Coleman v. Kimberly-Clark Corporation
02S01-9602-CV-00021
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Kay S. Robilio,
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 award of permanent partial disability benefits is excessive and that the trial judge "erred in failing to use the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, to review the anatomical impairment assigned by" the operating surgeon. The employee contends the award is inadequate. The panel has concluded the judgment should be affirmed as modified herein. The employee or claimant, Larry Coleman, is 52 and a high school graduate with no other training or education. He has worked all his adult life as an unskilled worker. On November 17, 1992, the fork lift which he was operating for the employer fell out of a truck bed to a parking lot, injuring him. He was treated and released at an emergency room and returned to work with pain. He ultimately was referred to a neurosurgeon, whom he first saw on January 26, 1993. The doctor diagnosed a herniated lumbar disc and prescribed an epidural block for the relief of pain. When conservative care no longer relieved the claimant's pain, surgery was performed. Since the surgery, he has continued to have disabling leg and back pain and numbness. The operation was the claimant's second for a ruptured disc in the low back, the other having occurred some seventeen years earlier. The claimant cannot sit or stand for long periods of time and has severely limited ability to bend forward. The operating surgeon assigned a permanent impairment rating of eighteen percent to the whole body, from the injury and surgery superimposed on his pre-existing spinal stenosis, using the AMA guidelines. Mr. Coleman does not think he can return to any kind of work. He has not worked since the surgery. A vocational expert examined the claimant and his medical records. The expert opined that the claimant has no transferable job skills and that he has no employability. The expert's opinion is based in part, however, on a hip problem which is not shown to have pre-existed the injury at work or to have been caused by the injury at work. We find no countervailing medical or vocational testimony in the record. The trial judge found the claimant's permanent industrial disability to be eighty-eight percent to the body as a whole and awarded benefits on that basis. Appellate review is de novo upon the record of the trial court, 2
Shelby County Workers Compensation Panel 09/11/96