Workers Compensation Panel Opinions

Format: 02/10/2016
Format: 02/10/2016
Kenneth Fuller v. Liberty Mutual Insurance Company, Madison Industries, Inc. and Sue Ann Head, Director of The Division of Workers Compensation, Tennessee Department of Labor
02S01-9508-CV-00076
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Whit Lafon,
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, Fuller, contends "the trial court erred in limiting his permanent total disability award to a maximum total benefit of one hundred forty-two thousand, three hundred eighty-eight dollars ($142,388.), as opposed to ordering lifetime benefits pursuant to Tenn. Code Ann. 5-6-27(4)(A), when the employee was found to be totally disabled." The Second Injury Fund (the Fund) contends the evidence preponderates against the trial court's finding that the claimant is permanently and totally disabled as a result of a work-related injury by accident. The panel concludes the judgment should be modified as provided herein. The claimant has three infirmities. He has a pre-existing avascular necrosis, which was surgically treated and from which he rehabilitated himself and worked for the employer, Madison Industries; he has carpal tunnel syndrome, which he gradually developed from repetitive use of his hands at Madison Industries; and he has Raynaud's disease or mixed connective tissue disorder, vasculitis, unrelated to any on-the-job injury. At the time of the trial, the claimant was thirty-seven years old and had a high school education and a drafting diploma. His working history includes bagging groceries, stocking shelves, operating machines, driving forklifts and production work, as well as drafting. In 1985, Dr. James Warmbrod, an orthopedic surgeon, performed hip surgery on the claimant's hips for bilateral avascular necrosis, secondary to chronic alcoholism. The same doctor performed bilateral carpal tunnel release surgery on the claimant in 1993, after the claimant developed bilateral carpal tunnel syndrome from his work for the employer. Dr. Warmbrod assigned ten percent permanent impairment to both arms and suggested that the claimant be limited to light, sedentary work and not do repetitive work with his hands. The doctor also suggested that, because of the claimant's vasculitis in both arms, which was diagnosed after he developed carpal tunnel syndrome, that he should work in a warm environment. Dr. Robert Winston, an internist, conducted an independent medical examination on June 21, 1994, after vasculitis had been diagnosed, and concluded that the claimant was permanently and totally disabled. The doctor assigned twelve to fifteen percent permanent impairment to each upper extremity and forty percent to the pre-existing hip condition. The trial court found the claimant to be permanently and totally disabled as a result of all three infirmities and awarded benefits accordingly, not to exceed $142,388., the maximum disability award allowable under the 2
Madison County Workers Compensation Panel 09/30/96
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
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