Workers Compensation Panel Opinions

Format: 09/18/2014
Format: 09/18/2014
Ronald H. Anselm v. K-Va-T Food Stores, Inc., Fireman's Fund Insurance Company and Sue Ann Head, Director, Division of Workers' Compensation, Tennessee
03S01-9508-CV-00087
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. W. Dale Young
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff alleged that he sustained an injury to his neck, arms and shoulders during the course of his employment by the K-VA-T Food Stores while performing repetitive actions involving the stocking of food shelves from April 1 to May 19, 1992. He further alleged that these repetitive actions aggravated a prior neck injury. The defendant denied the occurrence of an accidental injury. The plaintiff began working for K-VA-T as a cashier in September, 199. He was 5 years old, and had earned his livelihood driving a truck for most of his adult life. In l987 he was treated for shoulder pain for which, in December 1987, he settled a workers' compensation claim. He suf fered recurring pain in 199 while driving a truck and sought workers' compensation benefits which were awarded in December, 1992. The purported repetitive actions entailed by his most recent job occurred, as heretofore stated, during a six-weeks period in April and May, 1992. The trial judge found that the injuries complained of did not occur during the plaintiff's employment by K-VA-T, and dismissed the complaint. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial judge are correct unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Dr. Stephen Wiessfeld was the only medical expert called to testify. He said that based on the history related to him, the plaintiff sustained an aggravation to a pre- existing arthritic condition, but conceded that his opinion was dependent upon an accurate history of repetitive arm and shoulder movements. He found no anatomical changes, but relied upon the representations of his patient. Further evidence revealed that the claimed repetitive actions were not as onerous as claimed, which impelled the trial judge to find that the medical testimony was untrustworthy, and unreliable. The burden to establish each element of a workers' compensation claim is upon the employee claiming benefits. Oster v. Yates, 845 S.W.2d 815 (Tenn. 1992). One
Knox County Workers Compensation Panel 06/20/96
Teresa Davis v. Tecumseh Products Company
02S01-9512-CV-00125
Authoring Judge: Cecil Crowson, Jr.
Trial Court Judge: Hon. Julian P. Guinn,
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 is the extent of the claimant's permanent partial disability. The panel concludes that the award of benefits on the basis of forty percent to both arms should be affirmed. The claimant, Teresa Davis, is thirty-five and has a tenth grade education. As noted by the trial judge, she has obvious intellectual limitations and her only working experience is in the field of manual labor. At the time of the trial she had not been able to find employment within her limitations. She gradually developed bilateral carpal tunnel syndrome at work and was referred to Dr. Glenn Barnett, who performed surgical releases on both arms and, when she continued to have pain when attempting to work, referred her to occupational therapy. He assessed her permanent impairment at five percent to each upper extremity. Her attorney referred her to Dr. Joseph Boals, who assessed her permanent impairment at ten percent to each upper extremity based on loss of grip strength following bilateral carpal tunnel release surgery. Dr. Ray Hester opined that she would not be able to perform repetitive work in the future. Other medical evidence confirmed the permanency of her injury. 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). Considerable deference is accorded the trial judge's findings with respect to the credibility of witnesses who testify in person, as well as the weight and value of such testimony. Landers v. Fireman's Fund Insurance Company, 775 S.W.2d 355, 356 (Tenn. 1989). In determining a claimant's permanent industrial disability, the trial court should consider, in addition to the extent of medical impairment, many factors, including job skills, education, age, training, duration of disability and local job opportunities for the disabled. Worthington v. Modine Manufacturing Co., 798 S.W.2d 232, 234 (Tenn. 199). The trial judge expressly found that there are few work opportunities for the claimant in her disabled condition, contrary to the contention of the employer that there are numerous jobs available to her. The evidence fails to preponderate against that finding or the finding that she will retain a permanent impairment of forty percent to both arms. The judgment of the trial court is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Henry County Workers Compensation Panel 06/11/96
Teresa Davis v. Tecumseh Products Company
02S01-9512-CV-00125
Authoring Judge: Cecil Crowson, Jr.
Trial Court Judge: Hon. Julian P. Guinn,
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.
Henry County Workers Compensation Panel 06/11/96
Reva Pitts v. National Union Fire Insurance Company and Sue Ann Head Director of The Division of Workers' Compensation Tennessee Department of Labor, Second Injury Fund
03S01-9509-CH-00108
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Billy Joe White,
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's insurer, National Union, asserts that the evidence preponderates against the trial court's findings that (1) the claimant's injury was one arising out of her employment, (2) the claimant is permanently and totally disabled , and (3) the claimant gave the required notice to the employer. The Second Injury Fund (the Fund) asserts that the evidence preponderates against the trial court's finding that (1) the claimant is permanently and totally disabled and (2) the claimant is entitled to more than twenty-two weeks of temporary total disability. The panel has concluded that the judgment should be modified as set forth below. The employee or claimant, Reva Pitts, is thirty-nine and has ahigh school education. She has some computer training. From a previous injury she received a workers' compensation based on forty percent to the body as a whole. In her duties as a tire builder for the employer, Dico Tire, Inc., she operated a machine by pushing foot pedals. As a result, she gradually developed foot pain in both feet, which, on July 24, 1992, Dr. James Engblom diagnosed as tarsal tunnel syndrome, superimposed on other foot maladies. The doctor operated on both feet and estimated her permanent impairment at fourteen percent to both feet. She reached maximum medical improvement for her left foot on August 3, 1992 and for her right foot on November 6, 1992. Dr. Catherine Gyurik, a psychiatrist, began evaluating the claimant on July 28, 1993, and diagnosed recurrent depression chronologically related to her foot problems. The doctor did not testify the claimant was permanently impaired by her mental condition. Dr. Norman Hankins, a vocational expert, testified that the claimant was eighty-one percent disabled from the foot injury and subsequent surgery, based on restrictions from a physical therapist. The chancellor found the employee to be permanently and totally disabled and apportioned forty percent of the award of disability benefits to the Fund and sixty percent to the employer. Additionally, the chancellor awarded temporary total disability benefits from May 21, 1992 to August 22, 1992, and from September 4, 1992 through November 6, 1992. 2
Knox County Workers Compensation Panel 06/10/96
William Richardson v. Murray Ohio Manufacturing Company
01S01-9508-CV-00130
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. James L. Weatherford,
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 awarded the plaintiff 15% permanent partial disability to the body as a whole. The defendant below appeals, challenging the trial court's finding that plaintiff retains a permanent impairment as a result of his work-related injury. We affirm the judgment of the trial court. Plaintiff, 38 at the time of trial is a high school graduate. W hile moving a roll of sheet metal on June 2, 1992, plaintiff felt a sharp pain in his groin. He was referred to Dr. Robert Coble, who diagnosed a right inguinal hernia and performed a surgical repair. After surgery, plaintiff returned to his former employer, performing light duty work for a while and then returning to his former duties. Plaintiff testified that he re-injured this area in October, falling into a split. Plaintiff is now self- employed, painting and cleaning carpets. He testified that he continues to experience pain, soreness and pulling in his groin. Dr. Coble assigned plaintiff an impairment rating of 1% to 15%. He admitted on cross-examination that the A.M.A. Guides allow only a zero to five percent impairment rating for a hernia. He relied in part on the first edition of the A.M.A. Guides but testified that he considered vocational factors such as the employment activity described to him by plaintiff and the problems plaintiff described having while performing those activities. He did not place any permanent restrictions on the plaintiff. Our review is de novo on the record accompanied by the presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The plaintiff must prove every element of his case by a preponderance of the evidence. White v. Werthan Industries, 824 S.W.2d 158, 159 (Tenn. 1992). Causation and permanency of a work-related injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987).
Lawrence County Workers Compensation Panel 06/07/96
William Richardson v. Murray Ohio Manufacturing Company
01S01-9508-CV-00130
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. James L. Weatherford,
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 awarded the plaintiff 15% permanent partial disability to the body as a whole. The defendant below appeals, challenging the trial court's finding that plaintiff retains a permanent impairment as a result of his work-related injury. We affirm the judgment of the trial court. Plaintiff, 38 at the time of trial is a high school graduate. W hile moving a roll of sheet metal on June 2, 1992, plaintiff felt a sharp pain in his groin. He was referred to Dr. Robert Coble, who diagnosed a right inguinal hernia and performed a surgical repair. After surgery, plaintiff returned to his former employer, performing light duty work for a while and then returning to his former duties. Plaintiff testified that he re-injured this area in October, falling into a split. Plaintiff is now self- employed, painting and cleaning carpets. He testified that he continues to experience pain, soreness and pulling in his groin. Dr. Coble assigned plaintiff an impairment rating of 1% to 15%. He admitted on cross-examination that the A.M.A. Guides allow only a zero to five percent impairment rating for a hernia. He relied in part on the first edition of the A.M.A. Guides but testified that he considered vocational factors such as the employment activity described to him by plaintiff and the problems plaintiff described having while performing those activities. He did not place any permanent restrictions on the plaintiff. Our review is de novo on the record accompanied by the presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The plaintiff must prove every element of his case by a preponderance of the evidence. White v. Werthan Industries, 824 S.W.2d 158, 159 (Tenn. 1992). Causation and permanency of a work-related injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987).
Lawrence County Workers Compensation Panel 06/07/96
Robert F. Seymore v. Snap-On Tools Corporation
03S01-9507-CH-00081
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. G. Richard Johnson,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Defendant, Snap-On Tools Corporation, has appealed from the action of the trial court in awarding plaintiff, Robert F. Seymore, 4% permanent partial disability to each upper extremity. Plaintiff is 52 years of age and has a 12th grade education. He suffered bilateral carpal tunnel syndrome injuries as a result of work-related activities. Surgery was performed on the right on July 13, 1993 and the left on August 31, 1993. He returned to work during October, 1993. Plaintiff's job title is a heat treat operator, and he constantly uses his hands and wrists in his work. He testified that, after surgery, he felt some relief but most of his symptoms of pain and numbness have returned. He has continued to work without a drop in his production rate but says he still suffers from his injuries as he works and even after work. There is evidence from his wife and supervisor to substantiate his complaints of continuing problems. The only issue on appeal is the extent of permanent disability. Dr. Paul E. Gorman, an orthopedic surgeon, testified by deposition and did not give plaintiff any permanent impairment under the A.M.A. Guidelines. However, he testified plaintiff should be restricted in working. His restrictions included no overtime work, avoidance of vibration tools and no lifting or handling of items weighing in excess of 1 pounds. Dr. Eric C. Roberts, a physician in physical medicine and rehabilitation, also testified by deposition and examined plaintiff for the purpose of giving an impairment rating. He agreed with the restrictions as imposed by Dr. Gorman but was of the opinion plaintiff had permanent impairment under A.M.A. Guidelines of ten percent to each upper extremity. -2-
Washington County Workers Compensation Panel 05/24/96
Martha G. Myers v. Aluminum Company of America
03S01-9509-CV-00102
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. W. Dale Young,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff alleged that on May 15, 1983, she injured most of her body as a result of a job-related accident. She returned to work in November 199 and allegedly sustained two additional injuries which aggravated her pre-existing condition resulting in total disability for which she seeks benefits. The defendant generally denied that the injuries complained of were serious and denied that the plaintiff suffered any degree of disability. The trial judge ruled that the plaintiff failed to carry her burden of proof and dismissed her case. Our review is de novo on the record with the presumption that the findings of fact are correct unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Henson v. City of Lawrenceburg, 851 S.W.2d 89, 812 (Tenn. 1993). The plaintiff is 44 years old. She started work at ALCOA in 1978, but five years later suffered a pulled muscle in a vaguely defined manner which caused some cervical discomfort, exacerbated the following day in another vaguely defined manner. She complained of continuing discomfort and was seen by Dr. Haralson, an orthopedic specialist. Two days later, she returned to work for a brief period. She then left work for about six months, returned, and left again. This pattern continued for eleven or twelve years. In October or November 199, she testified that she tripped over some cables which "aggravated my problem," and shortly afterwards caught her foot in a table leg which "hurt my low back right instantly then." She said that in December, "I had to quit, go out," and never returned to work. In the interim, she was injured in a traffic accident which seemingly contributed to her discomfort. -2-
Knox County Workers Compensation Panel 05/24/96
Gary Reatherford v. Lincoln Brass Works, Inc.
01S01-9504-CV-00058
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. William B. Cain
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 doing construction work at the Lincoln Brass Works facility, moving the employee break room from one side of the building to another, when a nail flew into his right eye, requiring several surgical procedures and resulting in total permanent loss of vision in the eye. The trial judge found that he was a statutory employee of Lincoln Brass Works and held the company liable for 1 percent permanent disability to plaintiff's right eye. We affirm the judgment of the trial court. The only issue before us is the status of the plaintiff for workers' compensation insurance purposes. The plaintiff contends, and the trial judge held, that he was a statutory employee and Lincoln Brass Works was a principal contractor (statutory employer) under TENN. CODE ANN. _ 5-6-113. Lincoln Brass Works contends plaintiff was either an independent contractor or a casual employee. Under TENN. CODE ANN. _ 5-6-113(a), "A principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer," (commonly referred to as a "statutory employer"). This court has consistently held that where a business enterprise undertakes to act as its own principal contractor and contracts directly with a subcontractor for various phases of construction on its own premises, the business enterprise is subject to liability imposed by the Workers' Compensation Act. Acklie v. Carrier, 785 S.W.2d 355 (Tenn. 199). Lincoln Brass asserts the construction workers were independent contractors rather than statutory employees under TENN. CODE ANN. _ 5-6-113(a). The factors to be considered in determining whether a relationship to the principal was that of employee or independent contractor include: (1) the right to control the conduct of 2
Wayne County Workers Compensation Panel 05/17/96
Gary Reatherford v. Lincoln Brass Works, Inc.
01S01-9504-CV-00058
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. William B. Cain
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 doing construction work at the Lincoln Brass Works facility, moving the employee break room from one side of the building to another, when a nail flew into his right eye, requiring several surgical procedures and resulting in total permanent loss of vision in the eye. The trial judge found that he was a statutory employee of Lincoln Brass Works and held the company liable for 1 percent permanent disability to plaintiff's right eye. We affirm the judgment of the trial court. The only issue before us is the status of the plaintiff for workers' compensation insurance purposes. The plaintiff contends, and the trial judge held, that he was a statutory employee and Lincoln Brass Works was a principal contractor (statutory employer) under TENN. CODE ANN. _ 5-6-113. Lincoln Brass Works contends plaintiff was either an independent contractor or a casual employee. Under TENN. CODE ANN. _ 5-6-113(a), "A principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer," (commonly referred to as a "statutory employer"). This court has consistently held that where a business enterprise undertakes to act as its own principal contractor and contracts directly with a subcontractor for various phases of construction on its own premises, the business enterprise is subject to liability imposed by the Workers' Compensation Act. Acklie v. Carrier, 785 S.W.2d 355 (Tenn. 199). Lincoln Brass asserts the construction workers were independent contractors rather than statutory employees under TENN. CODE ANN. _ 5-6-113(a). The factors to be considered in determining whether a relationship to the principal was that of employee or independent contractor include: (1) the right to control the conduct of 2
Wayne County Workers Compensation Panel 05/17/96
Ray Donald Hawkins v. Metropolitan Government of Nashville & Davidson County Tennessee
01S01-9508-CV-00126
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Hamilton Gayden, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant sued his employer for workers' compensation benefits covering mental and emotional disability which resulted from being informed that he was about to be fired. The trial judge dismissed the action because it did not state a claim on which relief could be granted. We conclude that the judgment should be affirmed. I. The complaint alleged that the appellant had worked for the Nashville Electric Service for thirty-one years, serving finally as Executive Assistant General Manager. On March 11, 1992, one hour before a scheduled meeting of the Power Board, a Board member informed the appellant that at the meeting the Board would vote to dismiss him. Although the rumor turned out to be false, the appellant alleged that the shock and fright produced by the unwelcome news caused such mental and emotional stress that he became permanently disabled. The defendant filed a motion to dismiss for failure to state a claim. The trial judge initially overruled the motion but decided to grant it, after further proceedings in the case. II. - 2 -
Hawkins County Workers Compensation Panel 05/03/96
Ray Donald Hawkins v. Metropolitan Government of Nashville & Davidson County Tennessee
01S01-9508-CV-00126
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Hamilton V. Gayden, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant sued his employer for workers' compensation benefits covering mental and emotional disability which resulted from being informed that he was about to be fired. The trial judge dismissed the action because it did not state a claim on which relief could be granted. We conclude that the judgment should be affirmed. I. The complaint alleged that the appellant had worked for the Nashville Electric Service for thirty-one years, serving finally as Executive Assistant General Manager. On March 11, 1992, one hour before a scheduled meeting of the Power Board, a Board member informed the appellant that at the meeting the Board would vote to dismiss him. Although the rumor turned out to be false, the appellant alleged that the shock and fright produced by the unwelcome news caused such mental and emotional stress that he became permanently disabled. The defendant filed a motion to dismiss for failure to state a claim. The trial judge initially overruled the motion but decided to grant it, after further proceedings in the case. II. - 2 -
Hawkins County Workers Compensation Panel 05/03/96
Stanley Bailey v. Amre, Inc.
03S01-9511-CH-00124
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Billy Joe White
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 Chancellor held " . . . really all I can do is find that the medical proof does not bear out a finding of permanent disability," and this action for workers' compensation benefits was thereupon dismissed, the propriety of which is presented for our review, which is de novo on the record accompanied by a presumption that the findings of fact of the trial court are correct unless the evidence otherwise preponderates. TENN. CODE ANN. _ 5-6-225(e)(2). We affirm.
Knox County Workers Compensation Panel 05/02/96