Beatrice Scott Nall v. E. I. Dupont De Nemours and

This workers' compensation case 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 employee or claimant, Beatrice Nall, was 59 years old at the time of the trial, which began on October 9, 1998 and ended on October 12, 1998. She has a high school education, some business college and experience as a factory worker, waitress and secretary, as well as 16 years with DuPont, where she worked as a utility worker from 1977 until 1981, when she was promoted to a wet treatment operator. She suffered a previous injury in 1983, from which she received an award based on eighteen percent to the body as a whole. The claimant's duties as a wet treatment operator required her to unload railroad tank cars, which she had done for 12 to 15 years before suffering the present injury in 1993. Because some of the tank cars contained hazardous material, DuPont had established specific standard job procedures (SJP'S) for the unloading of railcars on the plant site. The claimant was intimately familiar with the SJP for unloading sulfuric acid cars. As the SJP'S were updated and changed, the claimant would review them again and initial them to document her review and understanding of the procedure. She last reviewed the SJP for unloading sulfuric acid from railcars on February 11, 1993, two months before her second acid related accident. All safety procedures were strictly enforced by the company. None of the several DuPont employees who testified was aware of anyone unloading acid cars without having on an acid suit. The applicable SJP required that the operator wear safety equipment and specifically required the wearing of an acid suit while unloading a railcar containing acid. On the day of her injury, the claimant attempted to inspect such a railcar, before commencing the unloading procedures, without donning the required safety equipment, particularly the acid suit. As she was doing so, she was sprayed with sulfuric acid and severely burned. The claimant initiated this action to recover medical and disability benefits as provided by the Workers' Compensation Act. Tenn. Code Ann. _ 5-6-11 et seq. By its answer, the employer, DuPont, denied that the injury was compensable and affirmatively asserted, in general terms, that the injury was barred by Tenn. Code Ann. _ 5-6-11. After a trial on the merits, the trial judge found that the injury was one arising out of and in the course of employment, that the employer had failed to establish by a preponderance of the evidence that the claimant willfully violated a safety rule or refused to wear a safety device and that the claimant is permanently and totally disabled as a result of her injuries. The award was correctly apportioned between the employer and the second injury fund. The employer has appealed, contending (1) the trial judge erred in finding that the claim is not barred by Tenn. Code Ann. _ 5-6-11(a) and (2) the trial judge erred in entering an order finding that the plaintiff was permanently and totally disabled. Our review of the trial court's findings is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is not bound by a trial court's factual findings but instead conducts an independent examination of the record to determine where the preponderance of the evidence lies.