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Stephanie Clinard v. Lumbermens Mutual Casualty Co. 01S01-9703-CV-00051
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. James E. Walton,
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 appellant here contends the evidence preponderates against the trial court's finding that the employee's injury was causally connected to her employment. The panel has concluded the judgment should be affirmed. The employee or claimant, Clinard, is approximately 4 years old and has a GED. She has worked as a cashier at a convenience market in Springfield since 1992, having previously worked as a cashier, as a baby sitter, as a production worker in a garment factory and as a homemaker. On March 24, she noticed a pop in her neck and a shooting pain in her left arm, while manually operating a credit card machine at work. She reported the event to her supervisor, who did not refer her to a physician or provide a list from which she could choose one. The claimant went to her own physician, Dr. Robert Ferland, who took her off work and prescribed physical therapy. She also saw two neurosurgeons, both of whom ordered diagnostic testing. One of them expressed doubt as to whether the injury was work-related, but was unable to point to any other possible cause. The other had no opinion as to the cause of injury. The claimant was unable to work from May 2, 1994 until she returned during the last week in July of the same year. She terminated her employment in November of that year after the pain worsened. The employer did not provide any medical benefits. Ultimately, the claimant sought outa Dr. Cantrell, who referred her to Dr. Arthur Cushman, another neurosurgeon. Dr. Cushman diagnosed a herniated disc in her neck and performed corrective surgery. The pain diminished following the surgery. Dr. David Gaw saw her after surgery and prescribed permanent limitations. The claimant took karate after the injury, but we find in the record no evidence that her injury was caused by karate lessons, as the employer's insurer contends. The lay proof supports the claimant's contention that her injury was work related. Dr. Cushman conceded the credit card machine incident and continued use of the arm at work was a possible cause of the injury. He estimated her permanent impairment at seven percent.. Dr. Gaw testified the credit card incident was the most likely cause, in the absence of any other explanation, and assigned a fifteen percent permanent impairment to the whole body. Both of these doctors based their opinions of permanent impairment on approved guidelines. The trial court found the injury to be work related and awarded benefits under the Tennessee Workers' Compensation Law (the Act). Appellate 2
Robertson
Workers Compensation Panel
Joey Sweat v. Superior Industries, Inc. 03S01-9701-CH-00006
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Thomas J. Seeley, Jr.,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. I This is a psoriatic arthritis1 case, an on-going debilitating condition, which pre-existed the plaintiff's employment. He alleges that he was asymptomatic prior to his employment by the defendant and that the nature of his job triggered his symptoms and worsened the underlying disease. The defendant says that only the symptoms, i.e., pain and swelling, were exacerbated by employment (as any physical activity would do) but that the disease per se was not worsened. Dr. David Lurie testified by deposition. The precise issue of whether the plaintiff's employment caused a progression of the disease or whether it merely aggravated the symptoms was not sufficiently articulated by Dr. Lurie in the opinion of the trial judge, and he requested that Dr. Lurie elucidate the point either by a supplemental deposition or by letter. Counsel agreed to the latter. He was asked: In your opinion, based on a reasonable medical probability, did Sweat's activities . . . advance and result in an actual progression of his underlying psoriatic arthritis? To which Dr. Lurie responded: "In my opinion, based on reasonable medical probability Sweat's work . . . advanced and resulted in actual progression of his underlying psoriatic arthritis." He testified that the allocation of the progression of the disease from physical activity as contrasted to spontaneous progression was not quantifiable, but that the "repetitive, strenuous, weight-bearing activities resulted in some permanent joint injury." 1A connective tissue arthritis, not curable, and highly debilitating. 2
Knox
Workers Compensation Panel
Teresa Woody v. Goodyear Tire & Rubber Co. 02S01-9976-CH-00052
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 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 benefits based on a finding of 25 percent permanent partial disability to her whole body. The defendant appeals, asserting the excessiveness of this award and the bar of the statute of limitations. An in-depth discussion of her employment history with the defendant is necessary for an adequate assessment of her claim. She was 34 years old at the time of trial and lives in Obion County, Tennessee. She completed high school and attended Vanderbilt University for a short period of time. At the time of trial, she was a senior at the University of Tennessee at Martin majoring in English, lacking approximately three hours before graduation. Following graduation, she plans to attend graduate school, seek a Masters Degree in English, and ultimately teach. Her work history includes a work study program at Vanderbilt University, primarily clerical in nature. She has worked for Baptist Hospital in Union City as an admission clerk, a clerical position, and in 1988, she began working for Goodyear Tire & Rubber Company, in the gift shop. Shortly thereafter, she moved into the factory, working on a bias unit, which involved repetitive overhead lifting, twisting and turning. In June of 1989, she began having pain and problems with her shoulders, and informed her supervisor, David Stephenson, of these problems and filled out an incident report in July, 1989. She was initially seen by Dr. David St. Clair who diagnosed impingement syndrome. Her claim for workers' compensation benefits was eventually denied. She continued to work on the bias machine and her shoulder problems progressively worsened. In 199, she resigned her position with the defendant to attend school, and worked part-time for Baptist Hospital in Union City, again 2
Obion
Workers Compensation Panel
Beverly Riddle v. Murray Outdoor Products 02S01-9706-CH-00058
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Joe C. Morris,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 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 the plaintiff 58 percent permanent partial disability to each arm as a result of carpal tunnel syndrome. The defendant raises the following issues on appeal: I. Whether the trial court erred in finding that the plaintiff had properly satisfied notice and statute of limitations requirements for her alleged left upper extremity injury. II. Whether the trial court erred in awarding the plaintiff 58 percent impairment to each arm. We affirm the judgment.
Madison
Workers Compensation Panel
Douglas Bumpus v. Birmingham-Nashville Express, et al. 01S01-9707-CV-00144
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. James E. Walton,
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. I This is another gradually-occurring injury case involving physical disability not caused by trauma, specific episode, or `accidental injury' as the term is historically used, that would best be resolved by appropriate legislation. The plaintiff is a career truck driver who developed osteoarthritis in both knees to the extent that full knee replacements were required. The prostheses were successful and after three months the plaintiff resumed his truck driving career. Nevertheless, the trial judge found that the plaintiff suffered a 7 percent vocational disability to both legs. His monetary recovery was limited to 26 weeks because of his age. The employer appeals, insisting that: (1) the plaintiff's arthritic condition is not compensable because non-job related; (2) the award is excessive; and (3) the lump sum order is improper. II The plaintiff was born in August, 1934. While he has held a number of jobs, he is a career over-the-road truck driver. He began working for the defendant in 1984. He is described as a freight peddler, meaning that he delivers and unloads the cargo he transports. Over the years the wear and tear occasioned by lifting and carrying heavy loads began to affect his bodily joints, particularly his knees. In 1987 or 1988, he sought treatment for his knees from Dr. James R. Smith, who diagnosed arthritis, about which nothing could be done. The condition worsened, his legs bowed, and knee replacements were recommended. III 2
Montgomery
Workers Compensation Panel
John W. Gray, Iii v. Gray and Williams, Inc., et al 02S01-9706-CH-00054
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Neal Small,
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. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The trial judge awarded the plaintiff 6 percent permanent partial disability. The defendants say the evidence presented at trial preponderates against the trial court's award of 6 percent permanent partial disability to the plaintiff's body as a whole as a result of his work related accident. We affirm the judgment of the trial court.
Shelby
Workers Compensation Panel
Beryl Jack v. State 01S01-9706-BC-00136
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. William Robert Baker,
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 employee contends the evidence preponderates against the commissioner's finding that her claim is barred because of a false statement contained in her employment application. The panel has concluded the judgment should be affirmed. The claimant has been a certified nursing technician since 1973. She began working for Bethany Health Care, a nursing home, in May of 199 and soon thereafter injured her back while lifting a patient. As a result of that injury, she received two laminectomies at L5-S1. Following those surgeries, she had difficulty standing, bending and sitting for long periods of time. The operating surgeon imposed lifting and bending restrictions. She was awarded permanent partial disability benefits and applied for social security disability benefits. She was terminated from Bethany because that employer did not have work for her within her limitations. On October 1, 1991, she made written application for employment at Middle Tennessee Mental Health Institute. On that application, she was asked, "Do you have a limiting disability or handicap?" She responded, "No." In response to a question as to her reason for leaving Bethany, she wrote, "Illness in the family." On another document, she denied having any "history of physical defects." On the strength of that application, she was approved for employment by the state. We find in the record no evidence that the employer had any knowledge of her pre-existing disability. It is equally clear in the record that she could not have been employed as she was if the above questions had been accurately answered. The commissioner denied compensation benefits because of the false application. 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). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996). A false statement in an employee'sapplication for employment will bar recovery of workers' compensation benefits if all three of the following elements exist: first, the employee must have knowingly and willfully made a false representation as to his physical condition; second, the employer must have relied upon the false representation and such reliance must have been a substantial factor in the hiring; and third, there must have been a causal connection between the false representation and the injury. Federal Copper and Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn. 1973). The causal 2
Knox
Workers Compensation Panel
Martha Shupe v. Ins. Co. of Pennsylvania 03S01-9706-CV-00065
Authoring Judge: Roger E. Thayer, Special Judge
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. The appeal was perfected by the employer, Insurance Company of Pennsylvania, from a decision of the trial court awarding the employee, Martha Jane Shupe, 9% permanent partial disability to the body as a whole. On appeal defendant insurance company insists (1) the trial court was in error in finding the cervical disc injury was work-related and (2) if the injury was work- related, the award of 9% was excessive under the proof. The employee contends (1) she is totally disabled and the award should be fixed at 1% and (2) the trial court was in error in finding the aneurysm rupture was not work-related. Plaintiff was 45 years of age at the time of the trial and had completed the 8th grade. She was employed at a Burger King restaurant on April 27, 1992, when she climbed upon a shelf to return a box to a higher shelf; in attempting to come down, her foot slipped and she fell some distance landing on her feet; she stated the fall caused her body to twist and she experienced immediate intense pain in her neck. Plaintiff was taken immediately to a hospital emergency room where she was examined and referred to another doctor. She remained off work for about two weeks and then returned to work on a reduced time schedule. She testified after some period of part time work, her employer decided she should not work further. On about May 27, 1992, she was present with her husband at a court hearing (unrelated to present case) when she turned her head to look out the window and felt a sting of pain in the back of her neck. Shortly later she experienced double vision problems and could not move her legs for awhile. She also became nauseated. Further investigation into her complaints indicated there had been a rupture of an aneurysm in her head and that she also had a herniated cervical disc. Surgery was performed to correct the aneurysm problem and about a year later, she had a fusion to repair the disc problem. The trial was conducted on October 28 and 29, 1996, which was about 4 _ years after sustaining the injury. She testified she had attempted to find some light 2
