Workers' Compensation Opinions

Defendant Tecumseh Products Company appeals the judgment of the Circuit Court of Henry County awarding plaintiff permanent partial disability asserting error as to issues of notice, statute of limitations, and causation. For the reasons stated in the opinion We affirm the judgment of the trial court.

The employee appeals and contends the trial court erred (1) in finding his medical impairment to be eleven percent instead of eighteen percent to the body, (2) in concluding that he has employment opportunities available locally, and (3) in failing to consider economic feasibility in determining local employment opportunities. We affirm the judgment of the trial court.

The plaintiff, Mary E. Miller, appeals the judgment of the Chancery Court of Tennessee for the 16th Judicial District at Murfreesboro, where the trial court found: (1) that Ms. Miller sustained an injury by accident arising out of and in the course and scope of her employment and awarded twenty percent (2%) permanent vocational or industrial disability to the right lower extremity; (2) that the testimony of Ms. Miller's expert witness on reflex sympathetic dystrophy (RSD) and fibromyalgia did not meet the criteria for acceptance of scientific testimony in McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn.1997), and therefore excluded his testimony; (3) that her condition of fibromyalgia and resulting psychiatric condition were not work-related and as such were not compensable; (4) that Ms. Miller was entitled to permanent medical care and treatment only for the injury to her right leg arising out of this work-related accident but not for fibromyalgia or any other conditions. Ms. Miller also raises some other procedural and evidentiary issues that will be addressed herein. For the reasons stated in this opinion, We affirm the judgment of the trial court.

The appellant presents the following issues for review: Whether the evidence preponderates against the trial court's determination of permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

The employer and insurance company have appealed from an award of permanent total disability insisting the evidence preponderates against the trial court's finding the employee's leg condition was causally related to his work injury. The employee contends the award of disability should have been determined to be of a permanent partial nature so that he would qualify for benefits under Tenn. Code Ann. _ 5-6-242. Judgment of the trial court is affirmed.

The defendant employee, Stephanie Keaton Simon, raises two issues, arguing that the trial judge erred in (1) failing, in the face of reasonable doubt regarding causation, to grant all inferences to Simon, and (2) finding that Simon's injury did not arise in the course of her employment. The Panel concludes that the evidence does not preponderate against the finding that Simon's injury arose outside the course of her employment. Furthermore, we do not find error in the trial court's asserted failure to resolve all reasonable doubt in Simon's favor regarding causation. Therefore, we affirm the judgment of the Chancery Court for Davidson County.

The employer appeals and contends (1) the trial court abused its discretion in refusing to admit and consider the deposition testimony of a physician and (2) erred in awarding the employee sixty-five percent disability to each leg. We sustain the contentions of the employer and modify the award to sixty-five percent to both legs.

This workers' compensation appeal has been referred to the Special Worker's Compensation Panel of the Supreme Court inaccordance with Tennessee Code Annotated _ 5-6-225(e) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff has appealed contending that the trial court erred in granting the defendant a motion to dismiss his complaint pursuant to Rule 41, Tennessee Rules of Civil Procedure, for a work-related injury occurring on October 6, 1998. After a review of the entire record, briefs of the parties and applicable law, judgment of the trial court is reversed and remanded. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded. L. TERRY LAFFERTY, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, John Sands. J. Arthur Crews, II and Michael A. Carter, for the appellee, Murray Outdoor Products, Inc. MEMORANDUM OPINION The plaintiff, age forty (4), testified that on April 29, 1997, while pulling a load of engines, he twisted his back and it popped. The plaintiff reported his injury and he was treated by Dr. John Holancin, but Workers' Compensation sent the plaintiff to see Dr. David Johnson who ran an MRI. The plaintiff lost no work and was on light duty for six (6) weeks. Between his return to work and October 1998, the plaintiff's back would lock up and his legs would tingle from prolonged standing about three to four times a month. The plaintiff stated that on October 6, 1998, he was picking up a unit off the floor to set it on the line, when his back went out and he hit the floor in pain. The plaintiff saw Dr. Holancin, who ordered a CT scan. At the request of the defendant, the plaintiff was referred to Dr. John Brophy. The plaintiff stated that he was restricted in his ability to do any lifting or bending while on light duty. The plaintiff testified that he saw Dr. Robert Barnett and that Dr. Barnett's nurse took down his history. When asked if he told the nurse about the October 1998 injury, the plaintiff stated, "I believe I did." In several parts of his testimony, the plaintiff is sure that he told the nurse about his October injury and cannot explain why such event is not recorded in her intake notes. The plaintiff admitted that while talking to Dr. Barnett he did not tell Dr. Barnett about the October injury. In his deposition, Dr. John D. Brophy, a neurosurgeon, testified that he first saw the plaintiff on January 6, 1999. Dr. Brophy obtained the plaintiff's historyin which the plaintiff injured his back in April 1997, while pulling a load of engines at work. An MRI was within normal limits. After conservative treatment, the plaintiff described approximately a twenty percent (2%) improvement from his injury. In October 1998, the plaintiff re-injured his back from lifting a lawn mower. Dr. Brophy reviewed the films of a CAT scan which revealed a bulging disc at L-5 S- 1. Dr. Brophy would not call this bulge a "ruptured disc." It was Dr. Brophy's opinion that the clinical exam of the plaintiff was a myofascial pain syndrome, with no evidence of radiculopathy. Dr. Brophy permitted the plaintiff to return to work full time without any restrictions on January 18, 1999. Dr. Brophy recommended to the plaintiff that he commence a physical exercise program, which consisted of walking and other activities. Dr. Brophy saw the plaintiff on March 17, 1999, with a complaint of no improvement in his pain syndrome. Dr. Brophy recommended that he continue his walking exercises. An evaluation of AP and lateral spine thoracic films demonstrated multi-level spondylosis. On October 6, 1999, the plaintiff returned with a complaint of continuing pain to his back and leg. Dr. Brophy's physical overall exam found the plaintiff's strength, gait, sensory, and symmetric reflexes normal. As of October 6, 1999, Dr. Brophy opined that the plaintiff had a zero permanent partial impairment rating, with no permanent restrictions. When asked about the differences in the MRI of 1997 and the CAT scan of 1998, the question was: Q. Doctor, certainly a lifting incident is capable of causing a bulging disc, is that correct? A. Yes. Q. And - - A. - - And the most common hist ory I get is I just woke up with it, Doctor, I don't understand. Q. But that's not the history you got in this case? A. No. -2-

This workers' compensation appeal has been referred to theSpecial 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. In this appeal, the employer and its insurer contend: (1) the trial court erred in finding the employee's carpal tunnel syndrome to be work-related; (2) the trial judge's comments concerning a potential expert and matters not in evidence demonstrated bias and lack of impartiality; (3) the trial court erred in not finding the employee's unilateral initiation and selection of medical treatment and refusal to report for light duty barred any claim for temporary total, permanent partial and/or medical benefits; (4) the trial court erred in finding that adequate and proper notice of a workers' compensation claim was provided; (5) the trial court erred in assessing bad faith penalties on outstanding medical expenses, temporary total disability benefits and accrued permanent partial disability benefits; (6) the trial court erred in finding that it was appropriate that the employee's attorney put in the record counsel's attendance at the employer's medical examination, and thus attempting to bolster the testimony of the employee; and (7) the trial court's award of permanent partial disability benefits was excessive. As discussed below, the panel has concluded the trial court erred in assessing a 25 percent penalty on accrued permanent partial disability benefits and in assessing a penalty on unpaid medical benefits, but that the judgment should otherwise be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed in part; Reversed in part; Modified in part. LOSER, SP. J, in which BIRCH, J. and PEOPLES, SP. J., joined. Robert J. Uhorchuk, Spicer, Flynn & Rudstrom, Chattanooga, Tennessee, for the appellants, Covenant Transport, Inc. and Travelers Insurance Companies. William Joseph Butler, Debbie C. Holliman, Farrar & Holliman, Lafayette, Tennessee, for the appellee, Sheree Sapp. MEMORANDUM OPINION At the time of the trial on February 1, 2, the employee or claimant, Sheree Sapp, was 43 years old and a high school graduate with experience as a convenience store worker and truck driver. After previously working for Covenant, she returned to work there in late May 1977. At the time, she was having general aches and pains in her hands, but had never experienced any tingling and numbness. She passed a physical examination before returning. Her duties required her to drive a truck and to help load, unload and drop trailers and refuel the tractor. By January of 1998, she was having pain, tingling and numbness in both hands. She reported the problems to her dispatcher at Covenant. She was eventually referred to Dr. Paul Abbey, whom she visited on June 12, 1998. On the same day, she notified her employer that she believed the condition was work related. The employer filed a First Report of Work Injury with the workers' compensation division of Tennessee on the same day. The employer told the claimant that she would be required to go to Chattanooga to be evaluated by a workers' compensation insurance company physician, stay in a motel and work in Covenant's offices in Chattanooga to have any chance of collectingworkers' compensation benefits. The claimant lives in Smith County, a drive of more than 15 miles from Chattanooga. She refused to drive to Chattanooga for an examination and evaluation. She received a letter from John Orum, a claims representative representing Covenant, denying workers' compensation benefits because, he said, ". . . After a careful review of your claim for Workers' Compensation benefits, we have determined that your carpal tunnel syndrome did not arise out of your employment with Covenant Transport, Inc." The letter was dated July 13, 1998. It is undisputed in the record that the claimant told Sheila Simpson-Murray, workers' compensation manager for Covenant, on June 12, 1998, that she had a work-related injury. At trial, Mr. Orum admitted that he actually made no investigation of the claim and that normally he would call the employee, the employer and the physician. He did not call Ms. Sapp or Dr. Abbey before denying this claim. The record contains conflicting evidence as to whether Ms. Murray offered the claimant a panel of three physicians from which to choose a treating one. The claimant says she did not; Ms. Murray says she did, but concedes all three were in Chattanooga, and admits she never offered the name of a treating physician as close to Smith County as Nashville, all on the advice of Orum. Additionally, the only light duty offered to the claimant was in Chattanooga. The claimant did not wish to drive all the way to Chattanooga for light duty work or medical care. Dr. Abbey continued to treat the claimant and eventually performed carpal tunnel surgery on both arms. She continued to have problems after surgery. The doctor's testimony regarding causation, though equivocal, was that the claimant's condition could have been work-related. Our independent examination of the record reveals no evidence that the injury resulted from an occurrence that was not work-related. Dr. Cornelius J. Mance, a neurologist, examined the claimant and found no evidence of carpal tunnel syndrome, but said he regularly saw truck drivers with the condition and would defer -2-

The appellant presents the following issues for review: (1) Whether the trial court correctly found that Mr. Holder did not give notice of a job injury or adequately disclose his condition; (2) Whether Mr. Holder permanently aggravated an underlying or pre-existing condition; (3) Whether Mr. Holder sustained any permanent partial disability as a result of his employment. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Whirlpool Corporation, appeals the judgment of the Chancery Court of Rutherford County where pursuant to Tennessee Code Annotated _ 5-6-241(a)(2) the trial court allowed reconsideration of the plaintiff's industrial disability and found that the plaintiff was entitled to receive an additional award of six percent (6%) to the body as a whole in addition to the previous award of eight percent (8%) made in accordance with the original settlement order between the parties filed in the Chancery Court of Davidson County. The defendant submits that the trial court erred in finding that the plaintiff, who was terminated for personal misconduct, was entitled to reconsideration pursuant to Tennessee Code Annotated _ 5-6-241(a)(2), resulting in enhancement of a prior disability. Under the recent ruling of the Tennessee Supreme Court in Freeman v. Marco Transportation Co., 27 S.W.3d 99 (Tenn. 2), in which the Court held that a request for reconsideration brought pursuant to Tennessee Code Annotated _ 5-6-241(a)(2) must be filed in the same court that exercised jurisdiction over the original workers' compensation claim, we do not reach the issue raised by the defendant and find that the judgment of the trial court should be reversed and the cause dismissed without prejudice. Under the savings statute, the plaintiff can refile her request for reconsideration in the Chancery Court of Davidson County within one year of the date of the judgment that is the final disposition in this case. Tenn. Code Ann. _ 5-6-225 (e)(2) Appeal as of Right; Judgment of the Chancery Court Reversed and Dismissed. CATALANO, SP. J., in which BIRCH,J. and WEATHERFORD, SR. J., joined. David T. Hooper, Brentwood, Tennessee for the appellant, Whirlpool Corporation. Christopher K. Thompson, Murfreesboro, Tennessee for the appellee, Hae Suk Holder. MEMORANDUM OPINION In 1995, Hae Suk Holder injured her right shoulder while working for Whirlpool Corporation (Whirlpool). She returned to work in February 1996 making the same wage she had been earning prior to her injury. On October 23, 1996, the ChanceryCourt of Davidson County approved a lump- sum settlement between the parties awarding Ms. Holder an eight percent (8%) permanent partial impairment to the body as a whole. The order also provided that Whirlpool was "relieved of any further liability to [Ms. Holder] under the Tennessee Workers' Compensation Law or otherwise, except for the obligation of the defendant to provide future medical benefits attributed to this injury...." The order did not contain any provisions regarding the right to reconsideration under Tennessee Code Annotated _ 5-6- 241(a)(2). Ms. Holder continued to work for Whirlpool until June of 1998 when she had a physical altercation with another employee that resulted in her termination. On August 7, 1998, Ms. Holder filed a complaint in the Chancery Court of Rutherford County seeking additional workers' compensation benefits by a reconsideration of her industrial disability pursuant to Tennessee Code Annotated _ 5-6-241(a)(2). The trial court found that Ms. Holder had sustained a fourteen percent (14%) vocational disability (an additional award of six percent (6%) to the original settlement award of eight percent (8%) vocational disability). ANALYSIS Tennessee Code Annotated _ 5-6-241(a)(2) provides in pertinent part: In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition. Such reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, . . . . Tenn. Code Ann. _ 5-6-241(a)(2). In the recent case of Freeman v. Marco Transportation Co., 27 S.W.3d 99 (Tenn. 2), our Supreme Court held that a request for reconsideration pursuant to Tennessee Code -2-

In this appeal, the employer insists the evidence preponderates against the trial court's finding that the employee is permanently and totally disabled and in favor of a minimal award of permanent partial disability benefits. As discussed below, the panel has concluded the judgment should be affirmed.

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 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The Appellant appeals from the amount of the award of permanent partial disability benefits. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the award made by the trial court. Tenn. Code Ann. ' 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed LEE RUSSELL, SP. J., in which ADOLPHO A. BIRCH, J. and JAMES L. WEATHERFORD, SR.J., joined Jeffrey P. Boyd, Jackson Tennessee, for the appellant, Ozburn-Hessey Moving Company James R. Tomkins, Nashville, Tennessee, for the appellee, Gary L. Holt, Sr. MEMORANDUM OPINION This is an appeal by Defendant Ozburn-Hessey Moving Company (hereinafter referred to as "Ozburn-Hessey" or "the company") from an award of benefits made in favor of Gary L. Holt 1 ("Claimant") on a claim filed pursuant to the Tennessee Workers Compensation Act. The trial court held that the Claimant was an employee of Ozburn-Hessey and awarded the Claimant a forty percent permanent partial disability to the body as a whole as a result of an injury to the back which allegedly occurred on July 23, 1998. The sole issue on appeal is whether the trial judge erred in her holding that the Claimant was an employee of Ozburn-Hessey and not a mere independent contractor. We conclude that the evidence does not preponderate against the trial judge's finding that the Claimant was an employee.

In this appeal, the appellant insists the trial court erred in disallowing her Tenn. R. Civ. P. 6 motion for relief from a final judgment. As discussed below, the panel has concluded the judgment should be affirmed.

The defendant, Bridgestone, appeals the judgment of the Chancery Court of Rutherford County where the trial court awarded Mr. Rector a 5% vocational disability for a psychological injury incurred as a result of his employment and found Bridgestone responsible for the cost of future psychiatric treatment as well as the cost of psychiatric treatment previously provided by Dr. Ravi Singh. For the reasons stated in this opinion We affirm the judgment of the trial court.

The appellant presents the following issues for review: (1) Whether the evidence preponderates against the trial court's finding that the plaintiff sustained a work related injury that resulted in a permanent disability to the plaintiff, and; (2) Whether the evidence preponderates against the trial court's finding that the Plaintiff had a 15% permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

In this appeal, the employer-appellant insists (1) the trial court erred in admitting into evidence the expert testimony of an independent medical examiner, (2) the award of permanent partial disability benefits based on 2 percent to the body as a whole is excessive and (3) the trial court erred in commuting the award to a lump sum, sua sponte. The employee-appellee insists the award of permanent partial disability benefits should be increased to one based on 4 percent to the body as a whole. As discussed below, the panel has concluded the award should be reduced to one based on 15 percent to the body as a whole, payable periodically.

The trial court did not issue a final order in this case. We therefore remand with instructions for further proceedings and a final judgment.

In this appeal, the Second Injury Fund insists (1) the evidence preponderates against the trial court's finding that the employee suffered a compensable injury on January 14, 1997, (2) the trial court erred in admitting into evidence the testimony by deposition of a vocational expert and (3) the evidence preponderates against the trial court's finding that the employee is permanently and totally disabled. As discussed below, the panel has concluded the judgment should be affirmed.

This workers' compensation appeal has been referred to theSpecial 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. In this appeal, the employer contends the evidence preponderates against the trial court's finding that the employee's carpal tunnel syndrome was work related and that the award of permanent partial disability benefits based on 5 percent to the arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and JOHN K. BYERS, SR.. J., joined. Patrick A. Ruth, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant, Peterbilt Motors Company. William E. Farmer, Lebanon, Tennessee, for the appellee, William David Holden. MEMORANDUM OPINION The employee or claimant, Holden, is 48 with a high school education and one year of college with experience as a welder and in construction trades. He began working at Peterbilt in August 1983. On July 1, 1997, while using a pry bar to slide a truck on the line, his hand slipped and he hit his left hand against the truck. He felt immediate pain and numbness in the hand and arm. He chose Dr. John McInnis from a list of three provided by the employer. Dr. McInnis x-rayed and splinted the hand and returned the employee to one handed work, after diagnosing a fractured fifth metacarpal. The employee returned to work after an uneventful recovery, but has been unable to make production expectations, for which he was reprimanded, because of pain and numbness in the injured hand and arm. His testimony as to the effect of his injury on his ability to work is supported by the testimony of co-workers and by the testimony of Mrs. Holden. On November 5, 1998, he saw Dr. Richard Fishbein with complaints of pain in the injured hand. Dr. Fishbein attributed a 3 percent permanent impairment to the hand and an additional 5 percent to the left arm for carpal tunnel syndrome caused by the July 1, 1997 injury. Dr. McInnis testified that trauma could cause carpal tunnel syndrome, but estimated the employee's permanent impairment at 1 percent to the left hand only. Upon the above summarized evidence, the trial court found that both injuries, the fractured hand and the carpal tunnel syndrome, were work related and awarded permanent partial disability benefits based on 5 percent to the left arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.

The plaintiff, Danny Hudson, appeals the judgment of the trial court that found that the plaintiff had failed to carry his burden of proof in establishing that his medical condition was caused by the work-related accident of August 21, 1996 and dismissed his claim. For the reasons stated in this opinion, We affirm the judgment of the trial court.

The employer insists (1) the trial court erred in finding a causal connection between the injury and the employment and (2) the trial court violated Tenn. R. Civ. P. 52.2 by filing findings of fact and conclusions of law after entry of final judgment. The Second Injury Fund insists the award of permanent partial disability benefits based on 85 percent to the body as a whole is excessive. The employee insists that the Second Injury Fund lacks standing in this tribunal because it did not file a notice of appeal, that the award is inadequate and that the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed.

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 defendant World Color Press, Inc. appeals the judgment of the Circuit Court of Dyer County which denied defendant's claim for set-off for short-term disability benefits paid by defendant under its disability plan. We find that the trial court erred in its application of Tenn. Code Ann. _ 5-6- 114 and reverse the trial court's judgment on that issue. We further find that plaintiff waived consideration on appeal of her claim that defendant failed to establish that the disability plan was "employer funded" as required by the statute. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded HENRY D. BELL, SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Jeffrey L. Lay and Gary H. Nichols, Dyersburg, Tennessee, for the appellant, WorldColor Press, Inc. Jay E. DeGroot, Jackson, Tennessee, and Tanda Rae Grisham, Memphis, Tennessee, for the appellee, Gloria Ann Johnson. MEMORANDUM OPINION The plaintiff was injured at work after the effective date of the 1996 amendment to the T.C.A. _ 5-6-114 under which defendant claims a right of set-off. 1 T.C.A. _ 5-6-114 provides as follows: (a) No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this chapter except as herein provided. (b) However, any employer may set off from temporary total, temporary partial, and permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury, provided that the disability plan permits such an offset. Such an offset from a disability plan may not result in an employee receiving less than the employee would otherwise receive under the workers' compensation law. In the event that a collective bargaining agreement is in effect, this provision shall be subject to the agreement of both parties. The record on appeal consists of the technical record and a verbatim transcript of trial excerpts which includes only the testimony of Mrs. Christie Shannon, defendant's human resources manager. She testified as to the existence of defendant's short term disability program, the provisions of the plan and that payments totaling $5,826.82 were made to plaintiff following her injury. The witness was unable to produce at trial a copy of the short term disability plan. The other excerpts are the findings and conclusions of the trial judge stated from the bench. The court found that the injury was compensable and awarded temporary total disability in the amount of $6,82.54 and a lump sum based upon a finding of thirty percent (3%) permanent partial disability to the body as a whole. Before determining medical expense and discretionary costs issues the trial judge addressed counsel as follows: The issue then becomes one of the applicability of T.C.A. 5-6- 114(b). That statute deals with set off for payments by disability plans. . . . . The question is today, does the defendant receive benefits or receive offsets for any short-term disability that it may have paid to the plaintiff. The attorneys for both sides have done a good job here today of explaining this case and explaining the applicability of this Statute. It is the defendant's position that this Statute applies and that they should receive the credit for the $5,826.82 that has been paid by the defendant to the plaintiff as the result of the short-term disability. 2