Tamatha Marie Howe v. Jones Plastic and Engineering

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, Defendant asserts: (1) the trial court erred in not limiting Plaintiff's permanent partial disability award to two and one-half (2-1/2) times her medical impairment rating of ten percent (1%) as provided by Tenn. Code Ann. _ 5-6-241(a)(1); (2) the trial court's award of seventy-five percent (75%) disability, a multiple of seven and one half (7-1/2) times her impairment rating, should be reduced when there are no specific findings supported by clear and convincing evidence of at least three of four factors contained in Tenn. Code Ann. _ 5-6-242; and (3) the trial court erred in granting Plaintiff temporary total disability benefits from May 2, 1999 until November 3, 1999. After a review of the entire record, applicable law and as discussed below, the Panel affirms in part, reverses in part, and remands to the trial court for specific findings with respect to permanent partial disability benefits. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part, Reversed in Part and Remanded. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, SP. J., and JANICE M. HOLDER, J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Jones Plastic and Engineering Company. Charles L. Hicks, Camden, Tennessee, for the appellee, Tamatha Marie Howe. MEMORANDUM OPINION Plaintiff, Tamatha Marie Howe, was thirty-one years old at the time of her injury and had worked for the employer, Camden Plastics, for three months. Plaintiff completed the 1th grade and has been attempting to obtain her GED. Her prior work history consisted of dishwashing, cooking and building furniture. Plaintiff worked for Defendant as a machine operator. On April 19, 1999, Plaintiff slipped on some grease at work and injured her back when it struck a metal bar. On April 2, 1999, x-rays at the Camden General Hospital emergency room reflected no fracture, subluxation or bony destruction. No significant degenerative changes were noted. Plaintiff was given pain medication and referred to her primary doctor. On April 21, 1999, Plaintiff was seen by Dr. Jesse Sewell with complaints of pain in her lower back radiating down her right thigh and leg. Plaintiff was seen by Dr. Sewell several times between April 21, 1999 and May 17, 1999. Dr. Sewell performed an MRI and treated Plaintiff conservatively. Plaintiff was treated by Dr. Sewell until June 2, when she was seen by other doctors. According to company policy, Plaintiff provided Defendant with Dr. Sewell's certificates for return to work/appointments. Plaintiff acknowledged that she did not return to work after receiving a letter from Defendant one day stating, "no show, no call, she was fired." At time of trial, Plaintiff stated that she has not worked since her accident, her back hurts, she cannot lift, bend or hardly walk and is currently on pain medication prescribed by her doctor. Plaintiff's husband corroborated his wife's testimony concerning her difficulties in performing her housework and physical complaints. Plaintiff has attended a school offering vocational assistance, but she complained that the jobs all required lifting. Plaintiff acknowledged that she did not see a doctor after May 2, 1999, because she had been fired and assumed her medical treatment would not be covered. Stacy King, a receiving clerk and Plaintiff's supervisor, testified on behalf of Defendant. She recalled Plaintiff's injury in April 1999, as Plaintiff reported the injury to her. Ms. King was also aware that Plaintiff was terminated. Ms. King testified that she saw Plaintiff one time between April 19, 1999, and her termination date. She stated she was driving along a highway in Bruceton, Tennessee, passing a factory outlet store, when she observed Plaintiff either climbing in or out of a car door window. Plaintiff denied that she could climb in and out of a car window. Sylvia Page, Human Resource Manager, testified that she handles workers' compensation claims for Defendant. Ms. Page identified off-work slips from a doctor's office indicating appointments, return to work, or if the employee is on restricted duty. After Plaintiff's first visit, she was to return to work on April 27. Ms. Page stated that she advised Plaintiff, "When you go for your doctor's appointment, whatever paper work is given to you at the doctor's office, please come back by our office and leave it with us so that we know whether you're on restricted duty or off work." Ms. Page testified that she made the decision to terminate Plaintiff. On the last page of Exhibit 1, Ms. Page identified a doctor's slip which indicated that Plaintiff could return to work on May 2, 1999. Also, above these words were the words "next appointment." To Ms. Page, this indicated that Plaintiff had both an appointment and a return to work on the same day. Plaintiff was scheduled to -2-