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Joseph Jarreau v. Vanliner Insurance Company 01S01-9512-CH-00228
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Bobby Capers,
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. This appeal presents the questions whether and under what circumstances, if any, an injured worker may give up his right to future medical expenses. The panel concludes the trial court's judgment, approving a settlement in which the right to future medical expenses was voluntarily surrendered for consideration, should be affirmed. The employee or claimant, Jarreau, commenced this civil action by filing a complaint for workers' compensation benefits, averring that he had suffered an injury by accident arising out of and in the course of his employment by Ozark Motor Lines, Inc. The complaint further averred, in relevant part, that his injury had been diagnosed as a tear of the left medial meniscus, that he had reached maximum medical recovery and would retain a permanent impairment but that there was a genuine dispute as to the extent of his permanent disability. He sought to recover medical and permanent partial disability benefits. Vanliner Insurance Company served its answer admitting it was the insurer for Ozark, but denying that the claimant had suffered a compensable injury or that he was permanently disabled. On September 8, 1994, before the case could be tried, the claimant and his attorney and the attorney for Vanliner appeared before Judge Capers seeking approval of a negotiated settlement. By the settlement terms, the claimant was to receive $25,459.2, representing a permanent partial disability of forty percent to the left leg, and an additional $9,54.8 in consideration of the claimant's relinquishment of any claim for future medical benefits, for a total of $35,.. Additionally, the claimant had already received $15,481.3 in medical benefits and $12,481.3 in temporary total disability benefits. We find in the record no transcript of the settlement hearing, but Judge Capers found that Dr. Robert V. Russell had opined the claimant had reached maximum medical improvement and would retain a permanent anatomical impairment of ten percent to the leg. The judge further found the settlement to be in the best interest of the claimant, "in light of the controversy and dispute between the parties." The agreement was approved as a full, final and complete settlement of Mr. Jarreau's claim against the employer and its insurer. Almost eight months later, on April 28, 1995, the claimant applied to the court, per Tenn. R. Civ. P. 6.2, for an order setting aside the settlement 2
Wilson
Workers Compensation Panel
Brenda Gail Ward v. United States Fidelity and Guaranty Company 03S01-9509-CH-00109
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 contends the evidence preponderates against the award of permanent disability benefits. The panel concludes the judgment should be reversed and the cased dismissed. The only issue litigated at trial was the extent of the claimant's permanent disability, if any. On February 19, 1993, the employee or claimant, Brenda Gail Ward, was sweeping a floor for her employer, United Parcel Service, when she suddenly slipped and fell, injuring her back, neck and shoulder. On April 7, 1993, she visited Dr. David Hauge, who treated her until January 26, 1994. Dr. Hauge diagnosed chronic degenerative changes unrelated to the above accident. His diagnosis was confirmed by an MRI of the spine. He found no evidence of an acute injury, except some muscle spasm which was resolved with physical therapy. He estimated her permanent impairment from her degenerative changes at nine percent to the whole body, but provided no proof of medical causal connection to the work-related accident. Approximately two years after the accident, the claimant was evaluated by Dr. William E. Kennedy, who found no permanent anatomical injury or change as a result of the work-related accident, but assessed her permanent impairment from her subjective complaints of pain at eight percent to the whole person. A vocational expert, Norman Hankins, estimated her industrial disability at between thirty-four and sixty-one percent, depending on her physical restrictions. The chancellor awarded permanent partial disability benefits based on forty-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Campbell
Workers Compensation Panel
Wade v. Davies 03C01-9509-CC-00260
Trial Court Judge: Mary Beth Leibowitz
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
Workers Compensation Panel
Beecher Kent Bilbrey v. Roadway Express, Inc. 01S01-9511-CH-00215
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Vernon Neal
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, Beecher Kent Bilbrey, has appealed from the action of the trial court in dismissing his claim for benefits because he failed to render proper notice of the claim to defendant, Roadway Express, Inc. The Chancellor made alternative findings regarding all other aspects of the claim in the event it was determined the notice requirement had been complied with or reasonably excused. Plaintiff is 5 years of age and has a 9th grade education. He was employed as a driver for defendant trucking company. On about June 2, 1993, while at a trucking terminal in Huntsville, Alabama, he testified he injured his back when hooking a set of double trailers. He said he called his dispatcher and told him he had pulled his back but didn't think it was going to be any problem. He told the trial court that upon returning to the Nashville terminal, Robert Anderson, a supervisor, asked him if he had been drinking and would he consent to take a blood alcohol test. He denied having drank anything and consented to take the test. He said he told Anderson he did not want to wait a long period of time to be given the test but left after waiting about 15 minutes. He returned to Cookeville where he went to the hospital emergency room. The record indicates that he returned to the emergency room on about June 3th and saw several doctors during June and July, 1993, concerning his physical condition. Plaintiff testified that shortly after the incident on June 2th he also called Roger Morrison, a relay manager, and told him he had hurt his back, had been to the hospital and wanted to go on sick leave. He said Morrison told him he was terminated for leaving the job. When asked if he had told how he hurt his back, he replied, "No. I didn't like his attitude. He made me mad." Plaintiff testified he knew it was a violation of company policy to leave without taking the blood test after he had agreed to do so. He also acknowledged that he was aware that he would be terminated for this reason. 2
Putnam
Workers Compensation Panel
Beecher Kent Bilbrey v. Roadway Express, Inc. 01S01-9511-CH-00215
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Vernon Neal,
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...
Putnam
Workers Compensation Panel
Kathy Shrum v. Insurance Company of The State of Pennsylvania 01S01-9511-CH-00205
Authoring Judge: Per Curiam
Trial Court Judge: Hon. C. K. 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. This appeal by Defendant, Insurance Company of the State of Pennsylvania, has resulted from the action of the trial court in authorizing the employee to seek treatment from a physician not designated by the employer. The dispute has arisen after the parties reached a settlement of all issues, and it relates to post- judgment treatment of plaintiff, Kathy Shrum. During February, 1995, an order of compromise and settlement was entered stating the employee was to receive an award of permanent disability benefits based on a 4.17% disability to the body as a whole. The order recited plaintiff was to remain under the care of Dr. Dave A. Alexander, an orthopedic surgeon, who had performed surgery on plaintiff and who was her treating physician for carpal tunnel syndrome injuries. Dr. Alexander had been designated along with two other surgeons by the Defendant as medical care providers pursuant to our statute. After providing for the furnishing of future medical expenses, the order recited The parties specifically recognize that defendant has not accepted as compensable and will not pay medical benefits related to any condition other than plaintiff's alleged bilateral carpal tunnel syndrome in light of the fact that there is medical proof which suggests that plaintiff suffers from a congenital condition known as cervical ribs which might be responsible for some of plaintiff's current symptomatology. On May 19, 1995, plaintiff filed a motion reciting she had not been receiving satisfactory medical attention and requested the court to choose an independent physician to treat her or to allow plaintiff to choose her own treating physician. Defendant filed a response opposing the request and alleged there was no evidence to support her claim as she had not been treated since April 4, 1994. On June 19, 1995, an order was entered by the trial court, stating " . . . Plaintiff is not satisfied with the doctors submitted to treat plaintiff by defendant . . ." -2-
Macon
Workers Compensation Panel
Farhad Yasin Sorani v. Royal Insurance Company of America and Kenco Plastics, Inc. 01S01-9510-CH-00179
Authoring Judge: Ben H. Cantrell, Special Judge
Trial Court Judge: Hon. Jane W Heatcraft, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial judge awarded compensation to the worker based on 5% permanent partial disability to both arms. Because we find that the evidence preponderates against the award, we modify it to 25% disability to both arms. I. Mr. Sorani, an Iraqi Kurdish refugee, went to work for Kenco Plastics, Inc. on or about February 1, 1994. His duties included gripping and cutting plastic, and involved repetitive hand movements. On May 16, 1994 he went to the Sumner County Regional Medical Center complaining of soreness in his left arm. He was diagnosed with tendonitis and put on light duty for seven days. On June 24, 1994 Mr. Sorani consulted an orthopaedic specialist for pain and numbness in both hands. An examination resulted in a diagnosis of bilateral carpal tunnel syndrome. On July 2, 1994 he was referred to another specialist, for complaints of numbness and tingling in the fingers of both hands. This specialist confirmed the carpal tunnel syndrome diagnosis and concluded that it was caused or aggravated by the work at Kenco Plastics. The doctor treated Mr. Sorani conservatively until October 28, 1994 when he performed carpal tunnel release surgery on the right hand. Following the surgery, Mr. Sorani suffered from an involuntary "triggering" movement in the ring finger on his right hand. His doctor thought that the condition would improve on its own if he was given three weeks rest. The doctor - 2 -
Sumner
Workers Compensation Panel
Farhad Yasin Sorani v. Royal Insurance Company of America and Kenco Plastics, Inc. 01S01-9510-CH-00179
Authoring Judge: Ben H. Cantrell, Special Judge
Trial Court Judge: Hon. Jane W Heatcraft, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial judge awarded compensation to the worker based on 5% permanent partial disability to both arms. Because we find that the evidence preponderates against the award, we modify it to 25% disability to both arms. I. Mr. Sorani, an Iraqi Kurdish refugee, went to work for Kenco Plastics, Inc. on or about February 1, 1994. His duties included gripping and cutting plastic, and involved repetitive hand movements. On May 16, 1994 he went to the Sumner County Regional Medical Center complaining of soreness in his left arm. He was diagnosed with tendonitis and put on light duty for seven days. On June 24, 1994 Mr. Sorani consulted an orthopaedic specialist for pain and numbness in both hands. An examination resulted in a diagnosis of bilateral carpal tunnel syndrome. On July 2, 1994 he was referred to another specialist, for complaints of numbness and tingling in the fingers of both hands. This specialist confirmed the carpal tunnel syndrome diagnosis and concluded that it was caused or aggravated by the work at Kenco Plastics. The doctor treated Mr. Sorani conservatively until October 28, 1994 when he performed carpal tunnel release surgery on the right hand. Following the surgery, Mr. Sorani suffered from an involuntary "triggering" movement in the ring finger on his right hand. His doctor thought that the condition would improve on its own if he was given three weeks rest. The doctor - 2 -
Sumner
Workers Compensation Panel
John Primm v. Ucar Carbon Company, Inc. 01S01-9511-CV-00204
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Jim T. Hamilton,
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, UCAR Carbon Company, Inc., has appealed from the action of the trial court in awarding plaintiff, John Primm, 65% permanent partial disability benefits to the body as a whole. Defendant contends the trial court was in error (1) in awarding 65% disability to the body as a whole, (2) in denying Defendant a set-off for payments of short-term disability insurance benefits and (3) in commuting the award to one lump sum payment. Plaintiff is 63 years of age and has a 12th grade education. He has followed construction work for many years and had worked for Defendant for 13 years prior to the time in question. During October, 1993, he was injured while using a pry bar to move a heavy metal plate. He said he felt a pinch in his back and shoulder and reported the injury to his employer. He continued to work on and off for different periods of time until his surgical procedures were over. After finally being released by his physician, he told the trial court he could not work at his old job and he elected to retire during March, 1995. The testimony of Dr. Eslick Daniel, an orthopedic surgeon, was presented by deposition. He indicated he first saw plaintiff on November 3, 1993, when he noted plaintiff had degenerative disc disease of his back and early arthritic changes of his shoulder. His first diagnosis was a shoulder and back strain and he said plaintiff did not indicate his problem was work-related. Upon seeing him a second time, his diagnosis was a rotator cuff strain with some tendinitis. He noted that between the two visits the patient had also seen a hospital emergency room doctor. Dr. Daniel had scheduled a CT Scan but plaintiff declined to take the test as he said the doctor had accused him of "faking" the injury. Dr. Daniel did not recall nor deny this conversation. Plaintiff decided to see another doctor designated by Defendant. This physician referred him to Dr. Greg Lanford, a neurosurgeon, who examined plaintiff 2
Maury
Workers Compensation Panel
John Primm v. Ucar Carbon Company, Inc. 01S01-9511-CV-00204
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Jim T. Hamilton,
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, UCAR Carbon Company, Inc., has appealed from the action of the trial court in awarding plaintiff, John Primm, 65% permanent partial disability benefits to the body as a whole. Defendant contends the trial court was in error (1) in awarding 65% disability to the body as a whole, (2) in denying Defendant a set-off for payments of short-term disability insurance benefits and (3) in commuting the award to one lump sum payment. Plaintiff is 63 years of age and has a 12th grade education. He has followed construction work for many years and had worked for Defendant for 13 years prior to the time in question. During October, 1993, he was injured while using a pry bar to move a heavy metal plate. He said he felt a pinch in his back and shoulder and reported the injury to his employer. He continued to work on and off for different periods of time until his surgical procedures were over. After finally being released by his physician, he told the trial court he could not work at his old job and he elected to retire during March, 1995. The testimony of Dr. Eslick Daniel, an orthopedic surgeon, was presented by deposition. He indicated he first saw plaintiff on November 3, 1993, when he noted plaintiff had degenerative disc disease of his back and early arthritic changes of his shoulder. His first diagnosis was a shoulder and back strain and he said plaintiff did not indicate his problem was work-related. Upon seeing him a second time, his diagnosis was a rotator cuff strain with some tendinitis. He noted that between the two visits the patient had also seen a hospital emergency room doctor. Dr. Daniel had scheduled a CT Scan but plaintiff declined to take the test as he said the doctor had accused him of "faking" the injury. Dr. Daniel did not recall nor deny this conversation. Plaintiff decided to see another doctor designated by Defendant. This physician referred him to Dr. Greg Lanford, a neurosurgeon, who examined plaintiff 2
Maury
Workers Compensation Panel
Donna F. Peace v. Southern Home Carpet, Inc. 03S01-9512-CH-00134
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. H. David Cate
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 issue on appeal is whether the Chancellor correctly denied the motion of the appellant that her award of benefits should be paid in lump sum. The husband of appellant suffered a fatal heart attack on February 1, 1995. For his death, she sought workers' compensation benefits as the sole surviving beneficiary, and the settlement of her claim, $382.79 weekly for 4 weeks, was approved by the Chancellor who declined to approve a lump sum payment. Accrued benefits were $8,2., timely paid. The plaintiff is 45 years old, a high school graduate, and is currently employed as a dental assistant, earning net pay of $1,3. monthly. She has no children and is the sole support of her disabled mother for whose care she pays $866.67 monthly. Her disposable income from all sources (inclusive of her mothers' SSI of $4.) is $3,358.76. The balance owing on her home mortgage is $45,., which she proposed to discharge; her monthly living expenses, including a mortgage payment and the expenses of her mother's care, are about $2,9.. The Chancellor observed that this is not a case where periodic payments are not needed as a substitute for wages. See Ponder v. Manchester Housing Auth., 87 S.W.2d 282 (Tenn. 1994). TENN. CODE ANN. _ 5-6-279 authorizes lump sum payments of awards, with instructions to the trial court to consider the best interest of the employee together with his ability to wisely manage and control the award. The Chancellor expressly found that a lump sum would not be in the best interest of the plaintiff, whose ability to manage a large sum was questionable since she could not account for 25% of the accrued payments and has failed to file income tax returns for the last five (5) years. We fully concur in the Chancellor's judgment and find no abuse of discretion. Henson v. City of Lawrenceburg, 851 S.W.2d 89, 813-14 (Tenn. 1993). The judgment is affirmed at the costs of the appellant.
Knox
Workers Compensation Panel
Corbin B. Scroggins v. Kenneth Ray Ely 03S01-9510-CH-00121
Authoring Judge: Senior Judge John K. Byers
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. The issue in this case is whether the trial judge erred in granting a summary judgment dismissing the plaintiff's petition for workers' compensation benefits because there is no jurisdiction over this case in Tennessee. We affirm the judgment of the trial court. The relevant facts in the case are simple. On or around May 17, 1991, the plaintiff learned that Ely's Trucking, a Knoxville company, had a possible opening for a driver. The plaintiff learned this from another driver, who lived, as did the plaintiff, in Nebraska. The plaintiff called Ely's Trucking Company from his home in Nebraska. Ray Ely, the owner of the trucking company, and plaintiff discussed plaintiff's desire to work for Ely. The plaintiff's testimony, taken by deposition, clearly shows Ely made an offer of employment to the plaintiff and that the plaintiff accepted the offer at his home in Nebraska, where he was when the discussion took place. There was no written contract of employment between the plaintiff and Ely. The only document signed by the parties was a listing of benefits the plaintiff had with Ely's Trucking. This was signed on May 21, 1991 in Knoxville. The injury of which the plaintiff complained did not occur in Tennessee. The Chancellor found there was no jurisdiction to try the case in Tennessee. The evidence supports this finding. There was no contract of employment entered into in Tennessee, nor was the employment principally localized within this state as required by TENN. CODE ANN. _ 5-6-115 to give jurisdiction to this state. The contract was completed in Nebraska when the plaintiff accepted the employment offer from Ely. Tolley v. General Accident Fire & Life Ins. Corp., 584 S.W.2d 647 (Tenn. 1979). We affirm the judgment of the trial court and remand the case thereto with costs assessed to the plaintiff. 2
Knox
Workers Compensation Panel
Kathy Shrum v. Insurance Company of The State of Pennsylvania 01S01-9511-CH-00205
Authoring Judge: Per Curiam
Trial Court Judge: Hon. C. K. 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. This appeal by Defendant, Insurance Company of the State of Pennsylvania, has resulted from the action of the trial court in authorizing the employee to seek treatment from a physician not designated by the employer. The dispute has arisen after the parties reached a settlement of all issues, and it relates to post- judgment treatment of plaintiff, Kathy Shrum. During February, 1995, an order of compromise and settlement was entered stating the employee was to receive an award of permanent disability benefits based on a 4.17% disability to the body as a whole. The order recited plaintiff was to remain under the care of Dr. Dave A. Alexander, an orthopedic surgeon, who had performed surgery on plaintiff and who was her treating physician for carpal tunnel syndrome injuries. Dr. Alexander had been designated along with two other surgeons by the Defendant as medical care providers pursuant to our statute. After providing for the furnishing of future medical expenses, the order recited The parties specifically recognize that defendant has not accepted as compensable and will not pay medical benefits related to any condition other than plaintiff's alleged bilateral carpal tunnel syndrome in light of the fact that there is medical proof which suggests that plaintiff suffers from a congenital condition known as cervical ribs which might be responsible for some of plaintiff's current symptomatology. On May 19, 1995, plaintiff filed a motion reciting she had not been receiving satisfactory medical attention and requested the court to choose an independent physician to treat her or to allow plaintiff to choose her own treating physician. Defendant filed a response opposing the request and alleged there was no evidence to support her claim as she had not been treated since April 4, 1994. On June 19, 1995, an order was entered by the trial court, stating " . . . Plaintiff is not satisfied with the doctors submitted to treat plaintiff by defendant . . ." -2-
Macon
Workers Compensation Panel
Martin Ellison Hughes v. Pioneer Plastics, Inc. and WaUSAu Insurance Co. 03S01-9509-CV-00110
Authoring Judge: Senior Judge John K. Byer
Trial Court Judge: Hon. Ben K. Wexler
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 his lower back lifting a heavy machine part at work on June 21, 1994. The trial court awarded him 5 percent permanent partial disability to the body as a whole and denied plaintiff's request for payment in lump sum. We affirm the judgment of the trial court. Plaintiff's injury at work on June 21, 1994 resulted in a herniated disc at L4- L5 which was treated conservatively without improvement. He underwent surgical repair on September 6, 1994 by Dr. Steven A. Sanders. He reached maximum medical improvement on February 5, 1995 and Dr. Sanders assessed 1 percent permanent partial impairment. Plaintiff was limited to lifting no greater than 35 pounds occasionally or 17 pounds frequently or five pounds constantly. He was told not to work at a job requiring constant bending. Plaintiff underwent independent medical examination by Dr. Gilbert Hyde, orthopedic surgeon, on March 1, 1995. Dr. Hyde also opined that plaintiff had reached maximum medical improvement and assessed 15 percent permanent partial impairment to the body as a whole. He opined the plaintiff should not lift over 25 pounds, not repetitively lift over 1 to 15 pounds, and do no prolonged riding, driving, sitting, bending, twisting or stooping. Dr. Norman Hankins, vocational specialist, evaluated plaintiff on March 13, 1995. He opined plaintiff is 48 percent to 64 percent vocationally disabled, with the variance owing to the differences in limitations placed on plaintiff by Drs. Sanders and Hyde. Plaintiff testified that he is in constant pain in his lower back and right leg. He has trouble sleeping due to the pain and cannot put any pressure on his right leg. He cannot drive, and a friend takes him where he needs to go. He does not believe he is able to work. Our review is de novo on the record with a presumption that the findings of 2
