Workers Compensation Panel Opinions

Format: 07/30/2014
Format: 07/30/2014
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
Clifford E. Wells v. Jefferson City Zinc, Inc.
03S01-9509-CV-00100
Authoring Judge: Senior Judge John K. Byers
Trial Court Judge: Hon. Ben Hooper,
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 appeals the trial court's finding that the plaintiff is 1% permanently and totally disabled, its apportionment of 7% of the liability to the employer and 3% to the Second Injury Fund and its commutation of the award to a lump sum. We modify the judgment to void the commutation of the award to a lump sum payment. As modified, we affirm the judgment. The plaintiff, 51 at the time of trial, has a ninth-grade education. His past work experience includes farming, paint spray mixing and operating and supervision of same, millwrighting, construction and working in the defendant's mines. He began working for the defendant in 1977. He suffered a back injury, possibly in the course and scope of his employment with the defendant-employer, in 1978. A lumbar laminectomy was performed in 1985 as a result of that injury. No workers' compensation claim was ever filed, and the employer did not pay any medical expenses. Plaintiff re-injured his back on February 21, 1992, while moving a pump in the course of his employment. He was laid off by the employer in June 1994, never having returned to work. Dr. John Bell, an orthopaedic surgeon, treated the plaintiff after his 1992 injury. He had also performed the plaintiff's 1985 surgery, after which he had assigned the plaintiff a 15% permanent impairment. He assigned the plaintiff a five percent impairment rating for the 1992 injury under the most recent edition of the A.M.A. Guides. He restricted the plaintiff from lifting more than 35 pounds occasionally, 2 pounds frequently, climbing and kneeling, bouncing, crouching or crawling more than occasionally. He had apparently informed the plaintiff of similar -2-
Jefferson County Workers Compensation Panel 05/01/96
Ross N. Everett v. Wal-Mart Stores, Inc.
03S01-9508-CH-00093
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Frederick D. Mcdonald,
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, Ross N. Everett, has appealed from the action of the trial court in awarding 45% permanent partial disability benefits to his left leg. His primary contention is the Chancellor was in error by not finding his pre-existing arthritic condition was aggravated by the accident. Plaintiff, 71 years of age at the time of the trial, was injured on March 2, 1992, while working for the defendant Wal-Mart Stores, Inc., when he was attempting to hang fishing lures. He testified he turned his foot to move and his knee twisted causing the injury. He related to the court a knee problem pre- existed the accident as he had seen a doctor during February, 1992. He said he was having pain and swelling in his knee, and he was unable to fully flex it. The only other witness to testify was Dr. Edwin E. Holt, an orthopedic surgeon, who testified by deposition. Dr. Holt stated his pre-existing problem in his knee was caused by arthritis; that the arthritic condition was not caused by the accident but the accident probably aggravated the arthritis by causing more pain; that the accident did not increase the arthritis; and that the accident did cause a meniscal tear which he corrected by arthroscopic surgery on September 12, 1992. Dr. Holt gave a 14% impairment rating to the left leg as a result of the meniscal tear and a 1% impairment rating to the pre-existing arthritic condition. We do not believe the Chancellor misapplied the ruling in the Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888 (Tenn. 1991) case as insisted by the plaintiff. Although a question as to whether plaintiff had sustained an injury by an "accident at work" was involved, the general rule concerning aggravation of a pre- existing condition was set forth, the rule being where an employee's work aggravates a pre-existing condition by making the pain worse but does not -2-
Knox County Workers Compensation Panel 05/01/96
Carol Victoria (Vicky) Pitner v. Vanderbilt Child and Adolescent Psychiatric Hospital, Employer, and Fidelity and Casualty Insurance Company of New York
01S01-9507-CH-00114
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Robert S. Brandt,
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 right arm, shoulder and neck at work on September 26, 1988. The trial court awarded 24 percent permanent partial disability to the body as a whole. Further, the trial court ordered a credit to the employer for temporary total disability benefits paid after May 5, 1992, the date the court found as plaintiff's date of maximum medical improvement. We affirm the judgment of the trial court. Plaintiff is 38 years old with a college degree. While working as a recreation specialist at Vanderbilt Child and Adolescent Psychiatric Hospital, she was injured as she attempted to catch a falling patient. She was treated in the Emergency Room for acute thoracic strain but continued to have pain. Further evaluation led to surgical removal of torn cartilage and the distal clavicle on August 2, 199 by Dr. J. Willis Oglesby. She did not improve, and subsequently began seeing Dr. John Campa, a neurologist, on July 1, 1991. Dr. Campa treated plaintiff with nerve blocks, injections, physiotherapy, biofeedback and anti-depressant medications. He diagnosed C5-6 subligamentous disk protrusion with secondary radiculopathy and C6-7 degenerative disk disease with secondary radiculopathy. He opined she requires further rehabilitation, including future surgery, to improve functioning and permit light to medium work. On July 21, 1993, when plaintiff advised she did not choose to have the recommended surgery, Dr. Campa opined that therefore she had reached maximum medical improvement, and assessed 24 percent medical impairment to the body as a whole under AMA Guidelines. During the period when plaintiff was being treated by Dr. Campa, she was sent back to Dr. Oglesby, the surgeon, for an independent medical examination on May 5, 1992. Dr. Oglesby opined she had reached maximum medical improvement as of that date. He assessed 1 percent permanent partial disability to her right upper extremity using the guidelines of the American Academy of Orthopedic Surgeons. He limited her 2
Davidson County Workers Compensation Panel 04/26/96
Carol Victoria (Vicky) Pitner v. Vanderbilt Child and Adolescent Psychiatric Hospital, Employer, and Fidelity and Casualty Insurance Company of New York
01S01-9507-CH-00114
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Robert S. Brandt,
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 right arm, shoulder and neck at work on September 26, 1988. The trial court awarded 24 percent permanent partial disability to the body as a whole. Further, the trial court ordered a credit to the employer for temporary total disability benefits paid after May 5, 1992, the date the court found as plaintiff's date of maximum medical improvement. We affirm the judgment of the trial court. Plaintiff is 38 years old with a college degree. While working as a recreation specialist at Vanderbilt Child and Adolescent Psychiatric Hospital, she was injured as she attempted to catch a falling patient. She was treated in the Emergency Room for acute thoracic strain but continued to have pain. Further evaluation led to surgical removal of torn cartilage and the distal clavicle on August 2, 199 by Dr. J. Willis Oglesby. She did not improve, and subsequently began seeing Dr. John Campa, a neurologist, on July 1, 1991. Dr. Campa treated plaintiff with nerve blocks, injections, physiotherapy, biofeedback and anti-depressant medications. He diagnosed C5-6 subligamentous disk protrusion with secondary radiculopathy and C6-7 degenerative disk disease with secondary radiculopathy. He opined she requires further rehabilitation, including future surgery, to improve functioning and permit light to medium work. On July 21, 1993, when plaintiff advised she did not choose to have the recommended surgery, Dr. Campa opined that therefore she had reached maximum medical improvement, and assessed 24 percent medical impairment to the body as a whole under AMA Guidelines. During the period when plaintiff was being treated by Dr. Campa, she was sent back to Dr. Oglesby, the surgeon, for an independent medical examination on May 5, 1992. Dr. Oglesby opined she had reached maximum medical improvement as of that date. He assessed 1 percent permanent partial disability to her right upper extremity using the guidelines of the American Academy of Orthopedic Surgeons. He limited her 2
Davidson County Workers Compensation Panel 04/26/96
Vera Jane King v. Travelers Insurance Company and Carter Automotive Products, Inc.
01S01-9509-CH-00155
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Charles Smith
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 right arm while using an air screwdriver on the assembly line at defendant's automotive products plant. The trial judge awarded her 9 percent permanent partial disability to the right arm and modified the average weekly wage and compensation rate. We find the evidence preponderates against an award of 9 percent and in favor of an award of 5 percent permanent partial disability to the right arm and affirm the judgment of the trial court as so modified. The plaintiff is 56 years old with a tenth grade education and a GED certificate. She had worked in factory assembly with defendant for 17 years at the time she was injured. On July 13, 1992, while using an air screwdriver to build fuel pumps, she experienced severe pain. Her family practice physician diagnosed acute lateral epicondylitis caused by repetitive motion. He recommended that she change jobs so that she would not have to apply pressure with her arms. He placed her on light duty and prescribed physical therapy. Her pain complaints did not improve. Dr. Fonda J. Bondurant, orthopedic surgeon, treated plaintiff for three months with cortisone injections. When plaintiff's complaints of pain still did not improve, he performed surgical release of the elbow in November of 1992. She was able to return to work in January of 1993, but worked long days and experienced recurrent pain. She was placed on a reduced work schedule of four hours per day. Plaintiff reached maximum medical improvement on April 19, 1993, and Dr. Bondurant opined she would continue to have pain and would be restricted to work that did not require repetitive motion. He found no loss of grip strength, no sensory changes, full range of elbow motion, and 3 percent permanent partial disability to the body as a whole according to AMA Guidelines as a result of her residual pain. Dr. Robert Paul Landsberg, orthopedic surgeon, conducted an independent medical examination for plaintiff's counsel on October 2, 1994. He diagnosed 2
Macon County Workers Compensation Panel 04/26/96