Cynthia Ellen Walker v. Advance Transformer Company,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The Second Injury Fund claims the trial court erred (1) in failing to make specific finding of the extent of the employee's disability attributable to a scheduled member as a percentage of her total disability, and (2) by ordering the Second Injury Fund to pay permanent and total disability benefits to age 65 after the employer paid 6 weeks of benefits for the injury to a scheduled member. We modify in part, reverse in part and remand. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Morgan County Chancery Court is modified in part and reversed in part. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. Paul G. Summers, E. Blaine Sprouse, Nashville, Tennessee, for the Appellant, The Second Injury Fund. Arthur G. Seymour, Robert L. Kahn, Frantz, McConnell & Seymour, LLP, Knoxville, Tennessee, for the Appellee, Advance Transformer Company and The Travelers Indemnity Company. 1 MEMORANDUM OPINION Facts Cynthia Ellen Walker injured her left arm on June 27, 2 in the course and scope of her employment with Advance Transformer Company ("Advance"). Ms. Walker had pre- existing work-related and non-work related medical conditions, and the arm injury resulted in her permanent, total disability. Ms. Walker had received a worker's compensation award in 1993 of 2 percent to both arms for bilateral carpal tunnel syndrome. In 1998, she received a 1.85 permanent partial disability settlement for a 1996 injury to her left shoulder. She had undergone several other surgeries, including two cervical operations and two knee surgeries. Dr. Michael A. McKay treated Ms. Walker for the left arm injury, diagnosed as a fractured distal radius extending into her wrist joint. He assigned a 15 percent medical impairment to the left upper extremity, which translates to nine percent whole body impairment under the AMA Guides. Dr. Rodney Caldwell, Ph.D., a vocational expert, testified that Ms. Walker was already 55-6 percent vocationally disabled when she sustained the June 27, 2 injury. The trial court found that the case was governed by Tenn. Code Ann. _ 5-6-28 (a)(1). It found Ms. Walker to be permanently totally disabled and fixed the vocational disability for the injury to the left arm at 3 percent. It ordered the employer, Advance, to pay 3 percent of 2 weeks, or 6 weeks of benefits, for the left arm injury, and the remaining balance of the total disability award to be paid to age 65 by the Second Injury Fund ("Fund"). Standard of Review The standard of review in a worker's compensation case is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Questions of law are reviewed de novo without a presumption of correctness. Smith v. U.S. Pipe & Foundry Co., 14 S.W. 3d 739, 742 (Tenn. 2) Issues 1. Did the trial court err in failing to make a determination of the percentage of vocational disability attributable to Ms. Walker's last injury as a percentage of her total disability? 2. Did the trial court err in failing to properly apportion liability for Ms. Walker's permanent total disability? 2