TWCA reviews whether an employee was permanently and totally disabled as a result of her injury

KATHY JOHNSON v. YOON INVESTMENTS, L.L.C. ET AL. (TWCA April 12, 2012)

The trial court found that the employee had sustained a compensable injury in October 2005 and that she was permanently and totally disabled as a result of the injury. It also found that the employee’s hospitalization in November and December 2009 was related to her work injury and ordered her employer to pay associated medical expenses.

On appeal, her employer contends that the trial court erred by finding that the employee was permanently and totally disabled and that the 2009 medical expenses were related to her work injury. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/johnsonk_041212.pdf

TWCA reviews whether a nurse was totally and permanently disabled by neck and lower back injuries

VONETTA MOUSSEAU v. DAVITA, INC. (TWCA February 22, 2012)

The employee, a registered nurse, injured her neck and lower back when she slipped and fell in a pool of water. She had surgical fusions of the cervical and lumbar spine. She continued to have serious symptoms for which she received numerous medications. Her treating physician testified that she was incapable of performing any nursing functions, including those that required only sedentary work. The trial court found her to be permanently and totally disabled. Her employer has appealed, contending that the evidence preponderates against the trial court’s finding on disability and that the employee should be held to have been offered a meaningful return to work. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/mousseauv_022212.pdf

TWCA reviews whether employee's lung disease was aggravated by his exposure to smoke at work

GEORGE McGOWAN v. STATE OF TENNESSEE (TWCA February 16, 2012)



An employee was exposed to smoke as a result of a fire at his workplace. Testing revealed the presence of bullous emphysema, a dangerous condition caused by cigarette smoking. Surgery was required to treat that condition. The Claims Commission ruled that the smoke exposure at work had aggravated and advanced his preexisting lung disease and awarded permanent total disability benefits. The employer has appealed, contending that the evidence preponderates against the Commissioner's finding of causation. We agree and reverse the judgment.



Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/mcgowang_021612.pdf

TWCA reviews whether employee suffered a compensable injury

SEAN L. JOHNSON v. RANDSTAD NORTH AMERICA, L.P. ET AL. (TWCA September 8, 2011)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee suffered an episode of serious breathing difficulty after work while at home. He was transported by ambulance to a hospital where an emergency tracheotomy was performed to allow him to breathe. He alleged that this episode was caused by exposure to airborne contaminants in his workplace. His employer denied the claim.

The trial court found that the employee had sustained a compensable injury and awarded permanent total disability benefits. The employer has appealed, contending that the trial court erred by finding that employee had a compensable injury, and by finding him to be permanently and totally disabled. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsons_090811.pdf

TWCA reviews whether both of employee's surgeries were caused by a work-related injury

MAXINE WATLEY v. WHIRLPOOL CORPORATION ET AL. (TWCA September 8, 2011)

In this workers' compensation case, the employee injured her lower back at work in May 2006. She received medical treatment for a short period of time and was then released by her doctor. In July 2007, she consulted a neurosurgeon for continuing lower back pain. Around the same time, she accepted a voluntary layoff from her employer, then retired. She later had two surgeries on her lower back: a discectomy in October 2007, and a fusion in April 2008.

She filed this action, alleging that the surgeries and resulting disability were caused by her employment. Her employer denied the claim. The trial court found that the October 2007 surgery was caused by her May 2006 injury, but the April 2008 surgery was not. It further found that her award of permanent disability benefits was "capped" at one and one-half times her anatomical impairment due to her voluntary retirement. Her employer has appealed, contending that the trial court erred by finding her claim was not barred by the statute of limitations, and by using an incorrect impairment rating as the basis of its award. Employee contends that the trial court erred by failing to find that she was permanently and totally disabled. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/watleym_090811.pdf

Court Reviews an Employee's Impairment Rating Based on His County-Employer's Workers' Compensation Plan

WILLIE J. HIGH v. SUMNER COUNTY, TENNESSEE (Tenn. Ct. App. July 25, 2011)

An employee of Sumner County was injured on the job and sought disability benefits pursuant to the Sumner County compensation plan. The employee's physicians initially gave him an anatomical impairment rating of 20%, but later determined that the employee was totally disabled and could not work. The County treated the employee's disability as a permanent partial disability and offered the employee a lower settlement than if the employee's disability were treated as a total permanent disability. The employee appealed the initial offer to the administrative review board, which upheld the initial offer of settlement.

The employee petitioned the chancery court for a writ of certiorari and asked the court to review the administrative decision and rule that it was arbitrary and capricious. The chancery court found the review board should have considered whether the employee was totally disabled based on the evidence in the record and remanded the case back to the review board for this purpose. The County appealed, and we affirm the trial court's decision. The plain language of the county plan does not support the administrative decision not to consider the employee's total disability in determining the compensation he is entitled to receive.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/highw_072511.pdf

TWCA Reviews an Award of Permanent Total Disability Benefits to an Employee Whose Physician Used the Medical Impairment Registry Process

COURIER PRINTING COMPANY ET AL. v. WANDA SIMS, EX REL ROBERT STEVE BLY ET AL. (TWCA July 21, 2011)

In this Workers' Compensation case, the trial court held that the employee had sustained a gradual injury to his lower back, and that he was permanently and totally disabled as a result of that injury. The employer has appealed, contending that the trial court erred by permitting the employee to use a physician who provided an impairment rating through the Medical Impairment Registry process as a medical expert on the issue of causation and by finding that the employee sustained a compensable injury. In the alternative, the employer contends that the trial court erred by awarding permanent total disability, and also in its alternative finding that the employee had proven three of the four elements set out in Tennessee Code Annotated section 50-6-242, and was thereby able to recover a permanent partial disability award in excess of six times the medical impairment. We find no error and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/courierprinting_072111.pdf

TWCA Reviews Whether an Employer is one that qualifies under a Second Injury Fund

RICKY D. GARRETT v. WILLIAM DAVID BROWN, ET AL. (TWCA March 15, 2011)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Ricky D. Garrett ("Employee") was injured when he fell from the roof of a barn during the course and scope of his employment as a handyman for William David Brown ("Employer"), a farmer who carried worker's compensation insurance.

Subsequently, Employee filed a complaint for worker's compensation benefits against Employer and Employer's insurance carrier. Employee also named the Second Injury Fund ("the Fund") as a defendant and alleged that the injury he sustained in the fall in combination with his pre-existing disabilities rendered him totally disabled.

The trial court agreed that Employee was permanently and totally disabled as a result of the injury sustained in the fall combined with the pre-existing disabilities and awarded Employee full benefits with 40% liability for the award assigned to Employer and 60% assigned to the Fund. The Fund appealed, asserting, 1) that Employer does not meet the definition of "employer" for purposes of the Second Injury Fund statute; 2) that the proof is insufficient to show that Employer had knowledge of Employee's pre-existing disabilities; and 3) that the judgment awarded Employee was incorrectly apportioned between the Fund and the Employer. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/garrettr_031511.pdf

TWCA Reviews a Finding of Permanent Total Disability

JACQUELINE MORAN v. CUMBERLAND COUNTY MEDICAL CENTER, ET AL. (TWCA March 2, 2011)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury.

The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.pdf

TWCA Reviews Whether an Employee was Permanently Disabled

WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA February 16, 2011)

The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf

TWCA Reviews Whether Employee was Permanently and Totally Disabled in a Trucking Accident

WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA January 28, 2011)

The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled.

The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_012811.pdf

TWCA Reviews whether Trial Court Properly Found Permament Total Injury of an Employee’s Previous Injury

LINDA PRINCINSKY v. PREMIER MANUFACTURING SUPPORT PREMIER MANUFACTURING SUPPORT SERVICES ET AL. (TWCA September 23, 2010)

In this workers' compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers' compensation claim was settled for two and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(a).

In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury.

The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed. We affirm the trial court's finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/princinskyl_092310.pdf

TWCA Reviews Whether Trial Court Properly Apportioned Liability in a Case Involving Permanently-Disabling Injuries

ROY T. McGAHA v. COCKE COUNTY HIGHWAY DEPARTMENT ET AL. (TWCA August 25, 2010)

In this workers' compensation action, the employee, Roy McGaha, sustained a work-related back injury in June 2004, while employed by the Cocke County Highway Department. He was able to return to work, and his claim for benefits was settled within the one and one-half times impairment cap contained in Tennessee Code Annotated section 50-6-241(a). He alleged that he sustained a new compensable injury to his back in November 2007. The county denied the claim, asserting that Mr. McGaha did not sustain a new injury, but that his condition was the result of his earlier injury, and his remedy was, therefore, limited to reconsideration of his previous settlement.

The trial court held that a new injury occurred in 2007 and that Mr. McGaha was permanently and totally disabled as a result of it. The court assigned 76% of the liability for the award to the county and 24% to the Second Injury Fund. The county has appealed, asserting that the trial court erred by finding that Mr. McGaha sustained a new injury and by finding that he was permanently and totally disabled. The Fund asserts, on appeal, that the trial court used an incorrect method to apportion liability.

We affirm the award of benefits. We conclude, however, that the trial court did not use the correct method of apportioning liability between the Fund and the county. That portion of the order is vacated, and the case is remanded for further proceedings with regard to that issue.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgahar_082510.pdf

Worker's Compensation Panel reviews whether employer proved its affirmative defense of employee misrepresentation of physical condition

MARK ALLRED v. BERKLINE, LLC, ET AL. (TWCA July 1, 2010)

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers' compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries.

The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense.

Upon review, we conclude that the evidence preponderates against the trial court's findings and that the employee's misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/allredm_070110.pdf

TCA looks at issues determining permanent total disability

CHARLIE D. EVANS, JR. v. CHEROKEE INSURANCE COMPANY ET AL. (Tenn. Ct. App. May 28, 2009)

In 2005, the employee, a truck driver, sustained a compensable injury to his right leg that also aggravated a pre-existing low back condition. As a result of childhood polio, the employee's left leg and foot were substantially smaller and weaker than his right leg and foot. The employee reported this pre-existing condition to the employer when hired in 2003. Medical proof established the employee's combined anatomical impairment at 14% to the body as a whole. The trial court found that the employee was permanently and totally disabled. The trial court assigned 84% of the award to the employer's workers' compensation insurance carrier, Cherokee Insurance Company, and 16% to the Second Injury Fund. The employer appealed, arguing that the trial court erred by finding the employee to be permanently and totally disabled. The Second Injury Fund appealed, arguing that it is without liability because the employee performed his truck-driving duties without restrictions or accommodations, thus, the employer did not have "actual knowledge" of the employee's prior disability. Alternatively, the Second Injury Fund contends that the trial court's award of permanent and total disability is not supported by the evidence. After review, the judgment of the trial court is affirmed.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/evansc_052809.pdf

TWCA reviews whether plaintiff was an employee or an independent contractor for the purposes of a workers' compensation suit

GLORIA KAZELESKI v. DIXIE MOTORS, INC. (TWCA February 10, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The plaintiff, Gloria Kazeleski, was involved in an automobile accident, and sought workers' compensation benefits from defendant Dixie Motors, Inc. Dixie Motors contended that she was not its employee, but an independent contractor. The trial court ruled that she was an employee, and awarded benefits, including 100% permanent disability of the left arm. The defendant has appealed, arguing that the trial court erred by finding that plaintiff was its employee. We conclude that she was an independent contractor, and reverse the judgment.

Full opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/kazeleskig_021010.pdf

TWCA reviews whether the trial court properly awarded permanent and total disability benefits

RAINES BROTHERS, INC., ET AL. v. BARRY WADE JOHNSON (Tenn. Work Comp. App. January 20, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/rainesbrothers_012010.pdf