Mcmahan v. City of Newport

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 found that the plaintiff had sustained a ten percent permanent partial disability as a result of a work-related accident, although he did not have any additional assigned medical impairment. Plaintiff appeals, challenging the trial court's findings that plaintiff was not assigned an additional medical impairment rating and that plaintiff had a ten percent permanent partial disability. He also argues that the trial court should have reconsidered plaintiff's permanent partial disability award from his first injury. We affirm the trial court's judgment. Plaintiff, 45, has an eighth-grade education. He served with the Marines in Vietnam, has worked as a welder and has worked in maintenance. In 1983, he began working for the city of Newport, performing mostly maintenance tasks. He injured his back on October 8, 1992, for which surgery was performed; he returned to work after this surgery. He was awarded 4% permanent partial disability benefits for this injury. The trial court in that case found that plaintiff had a 15% medical impairment rating based on the testimony of Dr. Alan Whiton, plaintiff's treating orthopedic surgeon, that plaintiff's impairment could be as high as 15%. Plaintiff re-injured his back on July 12, 1994, when a power saw jerked while he was trimming trees. A surgical fusion was performed on plaintiff in October 1994. He did not return to work, although he was offered a position which would involve supervising prison inmates who were picking up litter. His supervisor, Tim Dockery, testified that this position was still available for plaintiff, although he admitted it had not yet been funded by the city council. Plaintiff testified that he experiences continuous pain in his back and down his right leg and that he does not believe that he can work. He also testified that Mr. Dockery told him he would be moved back into full duty after a few months; however, Mr. Dockery testified that he did not say this and that the position was intended to be permanent. 2