Jack v. Delany

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends (1) the employee failed to give notice of her injury, (2) the claimant's injury did not arise out of the employment relationship and (3) the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant initiated this action on May 23, 1997 to recover workers' compensation benefits for her injuries. By its answer, the employer admitted the claimant had, in December of 1995, "complained of an injury to her right arm," but denied "that she complained of an injury to her left arm." It affirmatively averred that it provided her with a panel of three physicians, from which she chose Dr. Randall Robbins; and that Dr. Robbins treated her, referred her to other specialists, and performed surgery on her in April of 1996. The employer did not raise the issue of lack of written notice in its answer. The case was tried on May 29, 1998, when, according to the judgment, the only issues submitted to the trial court were "the extent of permanent, partial disability to be awarded to the plaintiff's right arm and whether the plaintiff is entitled to a judgment for a permanent, partial disability to the left arm, and whether the defendant should reimburse unto the plaintiff and her attorney a portion of the pretrial expenses incurred in preparing this matter for trial, and whether Roger L. Ridenour should receive his attorneys fees in a lump sum." After a trial, the court awarded, inter alia, permanent partial disability benefits based on eighty-five percent to the right arm and sixty percent to the left arm, which equates to or seventy-two and one-half percent to both arms. We have reviewed the case 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, as required by Tenn. Code Ann. _ 5-6-225(e)(2). The employee or claimant, Ms. Russell, is fifty-two years old with a tenth grade education and experience as a factory assembler, first at Burlington Hosiery, then Robbins Seat Belt Company, then at Oliver Springs Apparel and finally with this employer, Advance Transformer Company. She gradually developed disabling pain in both arms, but has continued to work. 2