Randall Clyde Foster v. Carolina Freight Carriers Corp.

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. Plaintiff/Appellee, Randall Clyde Foster, sustained two successive on-the-job back injuries. He was treated for both injuries by Dr. Thomas D. Weems, a neurosurgeon. The first injury occurred on December 13, 1993, when plaintiff suffered a herniation at the L3-4 level of the spine when he lifted the door of a trailer. This action arose from the second injury that occurred on July 13, 1995, when the plaintiff sustained a herniated disc at the L4-5 level while attempting to lift a stand in a trailer. Both injuries required surgery. Dr. Weems opined that the plaintiff was anatomically impaired at 17 percent to the body as a whole after the first injury, but he rated the plaintiff's impairment to the body as a whole as only 16 percent after the second injury. Suit was filed for workers' compensation benefits arising from the first injury on July 1, 1996. The case was settled by the parties and an order approving the workers' compensation settlement was entered in the Circuit Court of Shelby County on October 2, 1996. The order approving the settlement recited that Dr. Weems had fixed the amount of permanent partial impairment to the body as a whole at 17 percent and the settlement was based upon a 36 percent permanent partial disability to the body as a whole, for a total lump sum of $51,259.68. A certified copy of the order approving the settlement is before us. After trial of the instant case, arising from the accident that occurred on July 13, 1995 (the second accident), the trial court entered a judgment awarding the plaintiff a recovery based upon 3 percent permanent partial disability to the body as a whole. The judgment was erroneous in several respects. It recited that the treating physician had rated the plaintiff's permanent anatomical impairment to the body as a whole resulting from the first injury at 16 percent. Actually, Dr. Weems rated the impairment to the body as a whole from the first injury at 17 percent. More importantly, the judgment recited that the plaintiff had been awarded, pursuant to the settlement of the first accident, benefits upon 2