Bobby Lee Powers v. Aetna Casualty

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 court found plaintiff, Bobby Lee Powers, to be 1% disabled and awarded benefits for a period of 4 weeks pursuant to the provisions of T.C.A. _ 5-6-242. The judgment recited plaintiff was "found to have a 1 percent permanent, partial disability." Defendant insurance carrier, Aetna Casualty & Surety Company, was held liable for 8% of the award and the remaining 2% was allocated to the Second Injury Fund. The insurance carrier has appealed insisting plaintiff was found to be totally disabled and that the award of benefits should be paid until plaintiff becomes 65 years of age pursuant to the provisions of T.C.A. _ 5-6-27(4)(A)(I). This would result in payments being made for 262 weeks since plaintiff reached his maximum medical improvement on July 9, 1996. Aetna also argues the trial court was in error in making the 8% allocation to it as the court failed to take into account a previous award of workers' compensation benefits paid to plaintiff. The Second Injury Fund also contends the award should be computed under T.C.A. _ 5-6-27 rather than the provisions of T.C.A. _ 5-6-242. The state fund insists the allocation of 2% of the award to it was proper since an earlier workers' compensation award paid to the plaintiff was never approved by a court. Plaintiff was injured while working for Charles Blalock & Sons, Inc. on December 1, 1994. He was 58 years old when injured and 6 years of age at the time of trial. He completed the 4th grade and began working at age 13 years. He testified he could not read or write but could change money. His work experience is mostly in the construction industry. On the day of his last injury, he was operating a bulldozer and was backing up when he suddenly struck a large rock. This caused a whiplash injury to his neck and back and the force was strong enough to break the neck rest on the bulldozer. He continued to work with a lot of pain and medication until November, 1995. He has not worked anywhere since this time. Plaintiff has suffered a number of health problems prior to this last work- related injury. In 1966 he injured his back with another employer and was 2