Workers Compensation Panel Opinions

Format: 07/25/2014
Format: 07/25/2014
Frances Reynolds Kellerman v. Food Lion, Inc.
01S01-9512-CH-00226
Authoring Judge: Joe C. Loser, Jr., 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends (1) the chancellor erred in not accepting the opinion testimony ofthe claimant's treating physician, (2) the claimant's back injury is not compensable because the evidence failed to establish that "the accident either otherwise injured her or advanced the severity of her preexisting condition, (3) that the chancellor erred in considering expert medical testimony not based on reasonable medical certainty, and (4) the award of permanent partial disability benefits is excessive. The panel concludes that the evidence fails to preponderate against the findings of the trial court. The judgment is modified as provided herein. On November 29, 1993, the claimant, Kellerman, slipped and fell in a puddle of water at work, twisting her right knee and injuring her back. She was eventually referred to Dr. Richard Bagby, who saw her on January 13, 1994 and January 2, 1994. Dr. Bagby ordered a CT scan and studied the results. He opined that the claimant reached maximum medical improvement on January 24, 1994, when she was released to return to work with some minor restrictions. The doctor further opined that she would not retain any permanent impairment. We do not find in the record the degree of certainty upon which the doctor's opinion was based. The claimant returned to Dr. Bagby on March 1, 1994, when he noted her continuing pain but did not change her restrictions from lifting more than twenty pounds or any repetitive bending, or assess any permanent impairment. The claimant was referred to Dr. Keith Brown for examination and evaluation. Dr. Brown performed additional testing which put stress on her knee and back. From his examination, particularly a positive McMurray's test, this doctor diagnosed a torn medial meniscus in the right knee joint, which, if not treated, will worsen, he said. He assigned a permanent impairment rating of five percent to the right leg, using AMA Guidelines, and added restriction from any kneeling or stooping activities. Dr. Brown further opined that the claimant's disabling back pain was permanent and causally related to the injury at work. He diagnosed circumferential disc disorder which, he said, may or may not have preexisted that injury but was aggravated by the injury, and assigned an additional permanent impairment of ten percent to the whole person, from AMA Guidelines. His testimony included the following question and answer: Q. In the opinions you have expressed, have they been based on a reasonable degree of medical certainty? 2
Franklin County Workers Compensation Panel 09/05/96
Woodrow Cecil Foster v. Coffee County Highway Department and Coffee County, Tennessee
01S01-9512-CH-00232
Authoring Judge: Joe C. Loser, Jr., Retired Judge
Trial Court Judge: Hon. John W. Rollins,
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 questions the trial court's conclusion that the claim is not barred by Tenn. Code Ann. section 5- 6- 23, a one year statute of limitation. The employer also contends the award of permanent partial disability benefits based on forty-five percent to the body as a whole is excessive. This panel finds that the judgment should be affirmed. The action was commencedby the employee or claimant, Woodrow C. Foster, by the filing of a complaint on March 6, 1991, against the employer, Coffee County Highway Department and Coffee County, Tennessee, seeking workers' compensation benefits for injuries occurring in 1986 and 1987. The defendants served an answer raising the affirmative defense that the claim was barred by the above statute of limitation. Our 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) (1992). We accept the chancellor's relevant findings of fact as follows: "The plaintiff was a 59 year old male with a tenth grade education who, for the most part, had spent his adult life either driving a truck or loading and unloading a truck with short periods of employment as a carpenter's helper and working at a service station. Mr. Foster testified that in March, 1986, while changing a flat tire, he thought he 'broke his back,' that he went to a doctor who put a corset on him for two weeks and told him he had a 'pulled muscle.' Plaintiff went back to work and testified that he thought (the 'pulled muscle') was the only condition for which he suffered any discomfort. Plaintiff testified that in 199 he saw a doctor because his back continued to hurt. He saw Dr. Robison and Dr. Jekot, who asked him to return for another appointment but he did not let him return to work without seeing a neurosurgeon. He went to see Dr. Verne Allen...(who) performed an MRI that showed a bulging disc...(for which) he ultimately had surgery.... Plaintiff testified that he went back to work after surgery. He was off work approximately two months, but despite being given no restrictions as a result of the surgery he has constant pain out of the left side of his back and down his leg, that he presently takes steroids and walks to try to stay limber although he continues to hurt. Plaintiff testified that he continues to try to perform his job as a truck driver with the defendant Highway Department." An action by an employee to recover workers' compensation benefits for an accidental injury must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. section 5-6-224(1). However, if within such one year period the employer or its insurer makes voluntary payment of benefits, the action may be commenced within one year after the cessation of benefits. Tenn. Code Ann. section 5-6-23. 2
Coffee County Workers Compensation Panel 09/05/96
Woodrow Cecil Foster v. Coffee County Highway Department and Coffee County, Tennessee
01S01-9512-CH-00232
Authoring Judge: Joe C. Loser, Jr., Retired Judge
Trial Court Judge: Hon. John W. Rollins,
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 questions the trial court's conclusion that the claim is not barred by Tenn. Code Ann. section 5- 6- 23, a one year statute of limitation. The employer also contends the award of permanent partial disability benefits based on forty-five percent to the body as a whole is excessive. This panel finds that the judgment should be affirmed. The action was commencedby the employee or claimant, Woodrow C. Foster, by the filing of a complaint on March 6, 1991, against the employer, Coffee County Highway Department and Coffee County, Tennessee, seeking workers' compensation benefits for injuries occurring in 1986 and 1987. The defendants served an answer raising the affirmative defense that the claim was barred by the above statute of limitation. Our 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) (1992). We accept the chancellor's relevant findings of fact as follows: "The plaintiff was a 59 year old male with a tenth grade education who, for the most part, had spent his adult life either driving a truck or loading and unloading a truck with short periods of employment as a carpenter's helper and working at a service station. Mr. Foster testified that in March, 1986, while changing a flat tire, he thought he 'broke his back,' that he went to a doctor who put a corset on him for two weeks and told him he had a 'pulled muscle.' Plaintiff went back to work and testified that he thought (the 'pulled muscle') was the only condition for which he suffered any discomfort. Plaintiff testified that in 199 he saw a doctor because his back continued to hurt. He saw Dr. Robison and Dr. Jekot, who asked him to return for another appointment but he did not let him return to work without seeing a neurosurgeon. He went to see Dr. Verne Allen...(who) performed an MRI that showed a bulging disc...(for which) he ultimately had surgery.... Plaintiff testified that he went back to work after surgery. He was off work approximately two months, but despite being given no restrictions as a result of the surgery he has constant pain out of the left side of his back and down his leg, that he presently takes steroids and walks to try to stay limber although he continues to hurt. Plaintiff testified that he continues to try to perform his job as a truck driver with the defendant Highway Department." An action by an employee to recover workers' compensation benefits for an accidental injury must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. section 5-6-224(1). However, if within such one year period the employer or its insurer makes voluntary payment of benefits, the action may be commenced within one year after the cessation of benefits. Tenn. Code Ann. section 5-6-23. 2
Coffee County Workers Compensation Panel 09/05/96
Gary Allen Ferrell v. Batesville Casket Company
01S01-9512-CV-00218
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Gerald L. Ewell, Sr., Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court dismissed the plaintiff's complaint as barred by the statute of limitations. The plaintiff appeals this ruling. We affirm the judgment of the trial court. Plaintiff reported problems with swelling, pain and numbness in his right arm to his supervisor in June or July 1991. These problems occurred after using a pneumatic sander at work which plaintiff alleged was defective. He went to the company doctor about a week after he reported these problems to his employer. The company doctor advised him that his problems with his right arm were the result of his use of the pneumatic sander and further advised him to forever avoid using vibrating tools with his right hand. Plaintiff continued to have the same problems with his right arm and experienced exacerbations of his pain whenever he used a vibrating tool. He continued to see physicians, by referral from defendants and on his own. No proof was offered as to whether the defendants had paid any medical expenses for the plaintiff in relation to his alleged injury within a year of his filing this complaint in March 21, 1994. The trial judge held that there was no question in the court's mind that the plaintiff had known since June/July 1991 that he had a work-related injury and that the action was dismissed as barred by the statute of limitations. Our review is de novo on the record, accompanied by the presumption that the factual findings of the trial court are correct. TENN. CODE ANN. _ 5-6-225 (e)(2). TENN. CODE ANN. _ 5-6-23 provides: The right to compensation under the Workers' Compensation Law shall be forever barred, unless within one (1) year after the accident resulting in injury . . . occurred the notice required by _ 5-6-22 is given the employer and a claim for compensation under the provisions of this chapter is filed with the tribunal having jurisdiction to hear and determine the matter; provided, that if 2
Coffee County Workers Compensation Panel 09/05/96
Gary Allen Ferrell v. Batesville Casket Company
01S01-9512-CV-00218
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Gerald L. Ewell, Sr.
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 dismissed the plaintiff's complaint as barred by the statute of limitations. The plaintiff appeals this ruling. We affirm the judgment of the trial court. Plaintiff reported problems with swelling, pain and numbness in his right arm to his supervisor in June or July 1991. These problems occurred after using a pneumatic sander at work which plaintiff alleged was defective. He went to the company doctor about a week after he reported these problems to his employer. The company doctor advised him that his problems with his right arm were the result of his use of the pneumatic sander and further advised him to forever avoid using vibrating tools with his right hand. Plaintiff continued to have the same problems with his right arm and experienced exacerbations of his pain whenever he used a vibrating tool. He continued to see physicians, by referral from defendants and on his own. No proof was offered as to whether the defendants had paid any medical expenses for the plaintiff in relation to his alleged injury within a year of his filing this complaint in March 21, 1994. The trial judge held that there was no question in the court's mind that the plaintiff had known since June/July 1991 that he had a work-related injury and that the action was dismissed as barred by the statute of limitations. Our review is de novo on the record, accompanied by the presumption that the factual findings of the trial court are correct. TENN. CODE ANN. _ 5-6-225 (e)(2). TENN. CODE ANN. _ 5-6-23 provides: The right to compensation under the Workers' Compensation Law shall be forever barred, unless within one (1) year after the accident resulting in injury . . . occurred the notice required by _ 5-6-22 is given the employer and a claim for compensation under the provisions of this chapter is filed with the tribunal having jurisdiction to hear and determine the matter; provided, that if 2
Coffee County Workers Compensation Panel 09/05/96
Blanche Rene Smith v. Bruce Hardwood Floors
02S01-9512-CH-00130
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Joe C. Morris, Chancellor
This case is before the Court upon a motion for review purAppellate suant to C ourt Tenn.Clerk Code Ann. _ 5-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference; Whereupon, it appears to the Court that the motion for review is not well- taken and should be denied; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by the plaintiff-appellee, for which execution may issue if necessary.
Smith County Workers Compensation Panel 08/30/96
Debra Michelle Lambert v. Famous Hospitality, Inc.
02S01-9511-CV-00112
Authoring Judge: Senior Judge John K. Byers
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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff was working at Bruce Hardwood Floors when she injured her right shoulder in October of 1991 while lifting pieces of wood from a conveyor belt. In May of 1992, she complained to her treating physician of pain in her hands and wrists. She alleged work-related permanent disability as a result of these conditions. The trial court awarded plaintiff 33 percent permanent partial disability to each arm. We find the plaintiff has failed to meet her burden of proving permanent partial disability and therefore reverse the decision of the trial court and dismiss the complaint. Plaintiff testified that she was removing thin or short wood from a conveyor belt and lifting 4 to 5 pounds frequently when her right shoulder started bothering her, sometime in October or before October. The employer referred her to Convenient Care Clinic, then referred her to Dr. Alan Pechacek, board-certified orthopedic surgeon, at Jackson Clinic. Dr. Pechacek's examination and x-ray on November 11, 1991 gave him the impression that plaintiff's right shoulder pain was due to some irritation or inflammation of the rotator cuff tendons. He prescribed physical therapy, exercises, pain medication and work restrictions, which improved plaintiff's condition. In January of 1992, Dr. Pechacek told plaintiff she could return to full work with no restrictions. He continued to see her for renewal of prescriptions but felt she was "basically functional, as far as being able to do her job." In May of 1992, plaintiff returned to Dr. Pechacek complaining of shoulder pain and also bilateral wrist and hand pain and numbness. She said this bothered her both at work and at home at night. At her June, 1992 office visit, Dr. Pechacek stated that plaintiff's symptoms were "mild and vague," and he gave her splints to wear on her wrists. She was no longer working because of some dispute with her employer, and he thought she could control her hand activity at home. In July 1992, she returned still complaining of discomfort, so Dr. Pechacek ordered nerve conduction studies, which showed mild changes in the median nerve 2
Smith County Workers Compensation Panel 08/30/96
Reba Joyce Moody v. Phelps Security, Inc. and Fidelity and Casualty Co. of New York
02501-9509-CV-00080
Authoring Judge: F. Lloyd Tatum, Special Judge
Trial Court Judge: Hon. Robert A. Lanier, Judge
This workers' compensation appeal has been referred to the Special W ork ers ' C om pe ns atio n A pp ea ls P an el of the Su pre m e C ou rt in acc ord an ce with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep ort ing of fin din gs of fa ct a nd co nc lus ion s o f law . Suit was filed in the Circuit Court at Memphis b y Re ba Joyce Moody as representative of the estate of her deceased h usband, James Jun ior Mo ody, against Phelps Security, Inc., the employer, and Fid elity and Ca sualty Co. of New Y ork, the em ployer's workers' comp ensation insurance carrier. The plaintiff sued for workers' compensation benefits as a result of an accidental injury tha t alle ge dly caused th e d ea th o f Jam es Jun ior M oo dy, in clud ing a po rtion o f the medical ex pe ns es inc urr ed . T he de fen da nts filed an an sw er a dm ittin g that Jam es Jun ior M oo dy s us taine d a ccid en tal inju ries g row ing o ut o f and in the cou rse of h is em ploy m en t, but they denied that these injuries resulted in the de ath of Ja m es Jun ior M oo dy. The answ er also stated that the insurance carrier had paid that portion of the medical expenses which w ere rela ted to th e in jurie s s us tain ed by James Junior Moody on or a bo ut N ov em be r 7, 1 99 2, th e d ate of th e a ccid en t. The de fen da nts filed a suggestion of death showing that Reba Joyce Moody, Administratrix, died on September 19, 1 994. James Moo dy and Deborah Ann Wolfe were appointed as successor Co - Administrators of the estate. The trial judge found in fav or o f the plain tiff and aw ard ed w ee kly be ne fits from the date of the death of the deceased on January 13, 1993 to the widow's death on September 19, 1994. The total medical expenses owing was Two Hundred and Fifty-Seven Thousand, Three 2
Shelby County Workers Compensation Panel 08/30/96
Reba Joyce Moody v. Phelps Security, Inc. and Fidelity and Casualty Co. of New York
02501-9509-CV-00080
Authoring Judge: F. Lloyd Tatum, Special Judge
Trial Court Judge: Hon. Robert A. Lanier, Judge
This workers' compensation appeal has been referred to the Special W ork ers ' C om pe ns atio n A pp ea ls P an el of the Su pre m e C ou rt in acc ord an ce with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep ort ing of fin din gs of fa ct a nd co nc lus ion s o f law . Suit was filed in the Circuit Court at Memphis b y Re ba Joyce Moody as representative of the estate of her deceased h usband, James Jun ior Mo ody, against Phelps Security, Inc., the employer, and Fid elity and Ca sualty Co. of New Y ork, the em ployer's workers' comp ensation insurance carrier. The plaintiff sued for workers' compensation benefits as a result of an accidental injury tha t alle ge dly caused th e d ea th o f Jam es Jun ior M oo dy, in clud ing a po rtion o f the medical ex pe ns es inc urr ed . T he de fen da nts filed an an sw er a dm ittin g that Jam es Jun ior M oo dy s us taine d a ccid en tal inju ries g row ing o ut o f and in the cou rse of h is em ploy m en t, but they denied that these injuries resulted in the de ath of Ja m es Jun ior M oo dy. The answ er also stated that the insurance carrier had paid that portion of the medical expenses which w ere rela ted to th e in jurie s s us tain ed by James Junior Moody on or a bo ut N ov em be r 7, 1 99 2, th e d ate of th e a ccid en t. The de fen da nts filed a suggestion of death showing that Reba Joyce Moody, Administratrix, died on September 19, 1 994. James Moo dy and Deborah Ann Wolfe were appointed as successor Co - Administrators of the estate. The trial judge found in fav or o f the plain tiff and aw ard ed w ee kly be ne fits from the date of the death of the deceased on January 13, 1993 to the widow's death on September 19, 1994. The total medical expenses owing was Two Hundred and Fifty-Seven Thousand, Three 2
Shelby County Workers Compensation Panel 08/30/96
Christine Callahan v. Patrick Michael Callahan
03A01-9603-CV-00116
Authoring Judge: Don T. Mcmurray
Trial Court Judge: Hon. BILL SWAN, JUDGE
Knox County Workers Compensation Panel 08/30/96
Joe Boatman v. Ww of Memphis, Inc.
02S01-9508-CV-00065
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. James E. Swearengen
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Shelby County Workers Compensation Panel 08/28/96
Sandra Whitehead v. Express Services, Inc.
02S01-9511-CH-00118
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dewey C. Whitenton
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, Express Services, contends the trial court's award of permanent partial disability benefits on the basis of eighty percent permanent partial disability to the left arm is excessive. The panel has concluded that the award should be modified to provide permanent partial disability benefits on the basis of fifty percent to the left arm. At the time of the trial, the claimant, Sandra Whitehead, was thirty- five years old and had a GED. She has worked on an assembly line and as a sewing machine operator. She began working for the employer as a temporary employee on June 22, 1994. On July 1, 1994, she accidentally cut her left wrist while opening boxes with a box cutter. She was first referred to Dr. Charles Stewart, who diagnosed a laceration of the left wrist. He sutured the laceration, but later referred her to Dr. Anthony Segal, a neurosurgeon, when she continued to complain. Dr. Segal conducted nerveconduction studies and found mild nerve damage and possible reflex dystrophy. Dr. Segal testified by deposition but assigned no permanent impairment. The claimant went toDr. James Varner, an orthopedic surgeon. Dr. Varner diagnosed a partial sensory nerve laceration of the median nerve and reflex dystrophy syndrome. He treated her condition with medication, physical therapy and a stellate block, and assessed a permanent anatomical impairment of fifteen percent to the left arm. The doctor advised her to avoid repetitive use of the left arm, but said she could perform jobs that did not require such repetitive use. He said she was not impaired from pronating and supinating her wrist. A physical therapist testified that functional capacity evaluation tests were invalid because the claimant refused to exert maximum effort. The claimant testified that her arm stays cold all the time and that she is unable to perform household chores such as twisting caps from jars and opening doors. The trial court awarded permanent partial disability benefits on the basis of eighty percent to the left arm. Appellate review 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. section 5-6- 225(e)(2). 2
White County Workers Compensation Panel 08/28/96
Sandra Whitehead v. Express Services, Inc.
02S01-9511-CH-00118
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dewey C. Whitenton
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, Express Services, contends the trial court's award of permanent partial disability benefits on the basis of eighty percent permanent partial disability to the left arm is excessive. The panel has concluded that the award should be modified to provide permanent partial disability benefits on the basis of fifty percent to the left arm. At the time of the trial, the claimant, Sandra Whitehead, was thirty- five years old and had a GED. She has worked on an assembly line and as a sewing machine operator. She began working for the employer as a temporary employee on June 22, 1994. On July 1, 1994, she accidentally cut her left wrist while opening boxes with a box cutter. She was first referred to Dr. Charles Stewart, who diagnosed a laceration of the left wrist. He sutured the laceration, but later referred her to Dr. Anthony Segal, a neurosurgeon, when she continued to complain. Dr. Segal conducted nerveconduction studies and found mild nerve damage and possible reflex dystrophy. Dr. Segal testified by deposition but assigned no permanent impairment. The claimant went toDr. James Varner, an orthopedic surgeon. Dr. Varner diagnosed a partial sensory nerve laceration of the median nerve and reflex dystrophy syndrome. He treated her condition with medication, physical therapy and a stellate block, and assessed a permanent anatomical impairment of fifteen percent to the left arm. The doctor advised her to avoid repetitive use of the left arm, but said she could perform jobs that did not require such repetitive use. He said she was not impaired from pronating and supinating her wrist. A physical therapist testified that functional capacity evaluation tests were invalid because the claimant refused to exert maximum effort. The claimant testified that her arm stays cold all the time and that she is unable to perform household chores such as twisting caps from jars and opening doors. The trial court awarded permanent partial disability benefits on the basis of eighty percent to the left arm. Appellate review 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. section 5-6- 225(e)(2). 2
White County Workers Compensation Panel 08/28/96