TWCA reviews whether the trial court adopted the proper impairment rating and found that

LARRY KENNETH HALE v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA ET AL. (TWCA February 17, 2012)



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 fell and struck both knees on a concrete landing in the course of his employment with the employer. His left knee required surgery and his right knee received limited medical treatment. The treating physician assigned 8% permanent impairment to the left leg. Employee's evaluating physician assigned 13% impairment to the left leg and 20% impairment to the right leg. The trial court adopted the evaluating physician's opinions and awarded 50% permanent partial disability to both legs.

Employer argues on appeal that the trial court erred by finding that Employee sustained a permanent injury to his right knee, by adopting the impairment rating of Dr. Landsberg over that of Dr. Gavigan for the left knee injury, by failing to find that Employee had a meaningful return to work, and by granting an excessive award of benefits. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/halel_021712.pdf

TWCA Reviews Whether Employee's Injury was Compensable

STEVE MCBROOM v. NISSAN NORTH AMERICA, INC. ET AL. (TWCA May 10, 2011)

The employee alleged that he sustained a lower back injury as a result of his job. His employer denied the claim based upon findings by its work site medical staff. An evaluating physician opined that the employee's job had caused an aggravation of a pre-existing degenerative disc disease.

The trial court found that the employee had sustained a compensable injury and awarded benefits. The employer appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment, but we decline the employee's request to find the appeal to be frivolous.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/mcbrooms_051011.pdf

TWCA Reviews whether Employee Met the Burden of Proof to Prove Permanent Impairment

LINDA LEE KENNEY v. SHIROKI NORTH AMERICA, INC. ET AL. (TWCA February 28, 2011)

The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf

TWCA reviews whether the trial court erred by failing to require an employee to submit to an independent medical examination

VICKIE J. MYERS v. VANDERBILT UNIVERSITY (TWCA May 11, 2010)

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 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After developing an allergy to latex, a hospital employee filed a claim for workers' compensation benefits in the Chancery Court for Davidson County. While the case was pending, the trial court declined to require the employee to submit to an independent medical examination in accordance with Tenn. Code Ann. section 50-6-204(d)(1) (Supp. 2009). The trial court conducted a bench trial and determined that the employee's latex allergy was an occupational disease. The trial court also determined that the employee had a fifteen percent impairment to the body as a whole and awarded her permanent partial disability at fifty percent. The employer has appealed. We have determined that the trial court erred by failing to require the employee to submit to an independent medical examination. Accordingly, we vacate the judgment and remand the case for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/myersv_051110.pdf

TWCA reviews whether trial court erred in accepting evidence of treating physician instead of evaluating physician

JUDITH ANN LESKO v. TENNESSEE SCHOOL BOARD, ET AL. (Tenn. SWCAP January 22, 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 employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/leskoj_012210.pdf

Court reviews admissibility of a physician's evaluation when physician is unavailable for deposition by the opposing party

ANDREW CARTER v. QUALITY OUTDOOR PRODUCTS, INC. ET AL. (Tenn. January 22, 2010)

The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf

Note: On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General. The corrected opinion can be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf

Court reviews whether an independent medical evaluation was improperly admitted into workers' compensation case

ALISIA ARIAS v. DURO STANDARD PRODUCTS COMPANY ET AL. (Tenn. January 22, 2010)

The employee sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee's attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers' compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers' compensation benefits to the employee based on the physician's report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician's report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers' compensation benefits is vacated, and the complaint is dismissed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/ariasa_012210.pdf

Court analyses merits of blank claim

NIELSEN BAINBRIDGE, LLC v. THOMAS SHINN (Tenn. Work Comp. App. January 15, 2010).

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 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. Employee suffered a hernia as a result of his work. The trial court awarded 28.5% permanent partial disability to the body as a whole. On appeal, Employer contends that the trial court erred in basing its award upon the testimony of Employee's evaluating physician. We agree, and consequently modify the judgment to 4.5% permanent partial disability to the body as a whole.

Opinion may be found at: 
http://www.tba2.org/tba_files/TSC_WCP/2010/shinnt_011510.pdf