Workers Compensation Panel Opinions

Format: 04/24/2014
Format: 04/24/2014
Jeffrey Wolfe v. Liberty Mutual Insurance Company
02S01-9602-CV-00016
Authoring Judge: Cornelia A. Clark, Special Judge
Trial Court Judge: Hon. James M. Tharpe
This case is before the Court upon 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 Memorandum Opinion of the Panel should be accepted and approved; 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.
Shelby County Workers Compensation Panel 08/12/96
Anthony Ray Morris v. Keebler Company, Inc., et al
02S01-9511-CV-00119
Authoring Judge: Per Curiam
Trial Court Judge: Anthony Ray 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. The trial court held that plaintiff failed to provide timely notice as required by TENN. CODE ANN. _ 5-6-21 and that he failed to meet his burden of proving that his injury arose in the course and scope of his employment. The plaintiff appeals these findings. We affirm the judgment of the trial court. Plaintiff, 28 at the time of trial, worked for defendant as a route salesman. He testified that in early October 1992, he felt "a sudden pain--not pain, but tingling." He testified that he first felt this when his leg hit the ground getting out of the delivery truck he drove for defendant. After the initial onset of symptoms, plaintiff began to feel that his leg was losing strength. At one point early in the same month, his supervisor noticed him limping and asked him about it. Plaintiff reported feeling numbness and tingling in his leg and that he thought he was losing strength in his leg. The supervisor felt his leg and testified that it felt like "mush." Plaintiff did not report any injury or onset of symptoms at work at this time. Plaintiff testified that his left leg gave out on him in early November while he was shooting baskets. On November 1, 1992, he saw his wife's family practitioner, Dr. Walter Verner. He told Dr. Verner that he had pain in his left thigh and that he had been losing muscle strength in his left leg for about a month. Dr. Verner testified that his notes do not indicate a work-related injury, although that is something that he would normally record. Dr. Verner noted a marked reduction in the plaintiff's deep tendon reflex in his left knee and referred him to Dr. Barry Thompson, a neurologist. Dr. Thompson found left quadriceps weakness and ordered a variety of tests, including an EMG which indicated a possible L4-5 radiculopathy and an MRI which indicated a possible L3 herniated disc on the left. He referred plaintiff to Dr. Joseph Buchignani, a neurosurgeon. 2
Shelby County Workers Compensation Panel 08/12/96
Anthony Ray Morris v. Keebler Company, Inc., et al
02S01-9511-CV-00119
Authoring Judge: Per Curiam
Trial Court Judge: Anthony Ray 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. The trial court held that plaintiff failed to provide timely notice as required by TENN. CODE ANN. _ 5-6-21 and that he failed to meet his burden of proving that his injury arose in the course and scope of his employment. The plaintiff appeals these findings. We affirm the judgment of the trial court. Plaintiff, 28 at the time of trial, worked for defendant as a route salesman. He testified that in early October 1992, he felt "a sudden pain--not pain, but tingling." He testified that he first felt this when his leg hit the ground getting out of the delivery truck he drove for defendant. After the initial onset of symptoms, plaintiff began to feel that his leg was losing strength. At one point early in the same month, his supervisor noticed him limping and asked him about it. Plaintiff reported feeling numbness and tingling in his leg and that he thought he was losing strength in his leg. The supervisor felt his leg and testified that it felt like "mush." Plaintiff did not report any injury or onset of symptoms at work at this time. Plaintiff testified that his left leg gave out on him in early November while he was shooting baskets. On November 1, 1992, he saw his wife's family practitioner, Dr. Walter Verner. He told Dr. Verner that he had pain in his left thigh and that he had been losing muscle strength in his left leg for about a month. Dr. Verner testified that his notes do not indicate a work-related injury, although that is something that he would normally record. Dr. Verner noted a marked reduction in the plaintiff's deep tendon reflex in his left knee and referred him to Dr. Barry Thompson, a neurologist. Dr. Thompson found left quadriceps weakness and ordered a variety of tests, including an EMG which indicated a possible L4-5 radiculopathy and an MRI which indicated a possible L3 herniated disc on the left. He referred plaintiff to Dr. Joseph Buchignani, a neurosurgeon. 2
Shelby County Workers Compensation Panel 08/12/96
Vickie Lee Patterson v. Btr Dunlop, Inc., d/b/a Huyck-Formex
03S01-9507-CH-00082
Authoring Judge: Houston M. Goddard, Special Judge
Trial Court Judge: Hon. DENNIS H. INMAN
Knox County Workers Compensation Panel 07/31/96
Larry H. Mull v. Transport South, Inc.
03S01-9512-CV-00135
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. L. Marie Williams
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee/plaintiff injured his right arm while working as a truck driver for defendant. The trial judge awarded plaintiff 12 percent disability to the right arm. We find that the evidence preponderates against an award of 12 percent and in favor of an award of 2 percent permanent partial disability to the right arm and we affirm the judgment of the trial court as so modified. On February 19, 1993, Plaintiff was trying to pry loose a stuck fuel valve on the employer's fuel truck so that he could fill the truck with jet fuel when his wrist "popped" and started tingling. He went to the emergency room that day for treatment, where he was given a forearm splint. Three days later he saw orthopedic surgeon Dr. Alan Odom, who placed plaintiff on light duty for ten days and told him to 2
Hamilton County Workers Compensation Panel 07/31/96
Joyce Jones v. New York Underwriters
03S01-9505-CH-00050
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Richard E. Ladd
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 alleged injury to her back and neck at work. The trial judge awarded her 15 percent permanent partial disability to the body as a whole. We affirm the judgment of the trial court. Plaintiff was working for at Arcata Graphics on March 17, 1992 when her right index finger was caught in a re-press roller. She tried to jerk her finger out of the roller, fearing her whole hand and arm would be caught, and her supervisor pushed her back from the machine while trying to turn the machine off. She was treated in the emergency room and subsequently referred to Dr. James Phillips, orthopedic surgeon. She received anti-inflammatory medication and underwent physical therapy. Two weeks later she began experiencing increasing pain, "moving up her arm and in her shoulder and neck area," and still later she began having severe headaches on the right side of her head. Dr. Gregory Corradino, a neurologist, began treating plaintiff in late 1993 and performed surgery on her cervical spine. When deposed, Dr. Phillips opined that if plaintiff's finger crush injury were accompanied by a jerking maneuver, it could have caused her disc rupture, and that this possible causal connection would be strengthened if surgery resolved her complaints. Dr. Gregory Corradino found that plaintiff had a herniated cervical disc at C4/5 and performed surgical removal of the disc. W hen asked whether the disc herniation had been caused by plaintiff's jerking her finger out of the press at work, he opined that such motion could cause a disc herniation. Dr. John Marshall, physiatrist, evaluated plaintiff for defendant and treated her for nine months. He opined that although the jerking motion could herniate a disc, he did not think that it had done so in this case. Plaintiff testified that she jerked her head and neck hard to remove her finger from the press. She further said that prior to the injury at Arcata Graphics, she had
Knox County Workers Compensation Panel 07/30/96
Vickie Winningham v. Masters Health Care Center
01S01-9510-CV-00177
Authoring Judge: Per Curiam
Trial Court Judge: Hon. John Turnbull,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2
Putnam County Workers Compensation Panel 07/24/96
Vickie Winningham v. Masters Health Care Center
01S01-9510-CV-00177
Authoring Judge: Per Curiam
Trial Court Judge: Hon. John Turnbull,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2
Putnam County Workers Compensation Panel 07/24/96
Thomas E. Roddy v. Beaman Bottling Company
01S01-9511-CH-00194
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Don R. Ash,
This workers' compensation appeal has been referred to the Special 1 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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Rutherford County Workers Compensation Panel 07/24/96
Thomas E. Roddy v. Beaman Bottling Company
01S01-9511-CH-00194
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Don R. Ash,
This workers' compensation appeal has been referred to the Special 1 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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Rutherford County Workers Compensation Panel 07/24/96
Thomas E. Roddy v. Beaman Bottling Company
01S01-9511-CH-00194
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Don R. Ash,
This workers' compensation appeal has been referred to the Special 1 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. Defendant, Beaman Bottling Company of Nashville, had appealed from the action of the trial court in awarding plaintiff, Thomas E. Roddy, 33% permanent partial disability to the body as a whole. On November 12, 1992, plaintiff was injured during the course and scope of his employment with the defendant. After having surgery for a rotator cuff injury, he returned to work on about August 1, 1993, at a wage equal to or greater than that he was receiving prior to his injury. In the spring of 1994, defendant company was sold to Pepsico, the parent company for Pepsi-Cola. Plaintiff continued to work for new owner Pepsico until September 9, 1994, when his job classification was eliminated and he was terminated. There is some dispute concerning the medical impairment to the body as a whole. At issue is whether plaintiff sustained a 7% or 11 % impairment to the body as a whole. We conclude that the finding of 11% impairment to the whole body is the proper finding of medical impairment. The primary issue is whether the award of disability is limited to two and a half times the medical impairment rating provided in TENN. CODE ANN. _ 5-6- 241(a)(1) or whether the award may be fixed up to six times the medical impairment rating as provided in TENN. CODE ANN. _ 5-6-241(b). Under subsection (a)(1), an injured employee's recovery is limited to two and a half times the employee's medical impairment rating if the pre-injury employer returns the employee to work at a wage equal to or greater than that received prior to the injury. Subsection (a)(2) provides that the industrial disability award may be reconsidered by the court when the employee is no longer employed by the pre- injury employer, the loss of employment occurs within 4 weeks of the day the employee returned to work, and a new cause of action is filed within one year of the 2
Rutherford County Workers Compensation Panel 07/24/96
Bill Purcell v. The Lilly Company and Federated Insurance Company
02S01-9508-CV-00073
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George H. Brown, 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. In this appeal, the employee or claimant, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. 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). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
Shelby County Workers Compensation Panel 07/22/96
Bill Purcell v. The Lilly Company and Federated Insurance Company
02S01-9508-CV-00073
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George H. Brown, 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. In this appeal, the employee or claimant, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. 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). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
Shelby County Workers Compensation Panel 07/22/96