Danny E. Wilson v. Calvin Burgess Lumber Company

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 employee, Wilson, contends the evidence preponderates against the trial court's finding that his injury did not arise out of the employment. This panel affirms the trial court. The employee or claimant worked for the employer, Burgess, as a log skidder operator. On May 29, 1994, at approximately 12:3 p.m., the claimant lost consciousness and became incontinent. When he regained consciousness, he told his employer he was ill and needed to go home. In his complaint, he claims his condition was caused by a faulty exhaust system on the skidder he was operating. It is undisputed the exhaust system on the skidder he had been operating was faulty. The defective part has since been replaced. The skidder did not have a closed compartment for the operator. Although a toxicologist diagnosed brain damage caused by carbon monoxide poisoning, tests on the skidder produced carbon monoxide readings below the OSHA limit of no more than fifty parts per million for an eight hour exposure. A sample taken at two feet from the end of the exhaust pipe showed thirty parts per million and one taken sitting in the operator's seat, with a slit in the piece of flexible pipe that had a hole in it, showed two parts per million. Moreover, another medical expert opined those levels were insufficient to cause brain damage to an operator in an open seat. Dr. Myron L. Mills, an occupational medicine specialist, further opined the claimant's injury was the result of a non-work-related seizure. The trial judge dismissed the claim for insufficient proof of causation. 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). An accidental injury arises out of one's employment when there is 2