Robert Foster v. Morrow Trucking, Inc.,

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. The trial judge found the plaintiff sustained a compensable injury to his back as a result of a fall. Further, the trial judge found the plaintiff had sustained a previous disabling condition by reason of diabetes and spondylolisthesis, which were non-work related conditions, and found that the current disability coupled with the pre-existing disabilities rendered the plaintiff totally and permanently disabled. The trial judge applied Tenn. Code Ann. _ 5-6-28(a) and ordered the award to be compensation for a period of 842 weeks and 8 days. The defendant was ordered to pay 421 weeks and 4 days of the award and the Second Injury Fund was ordered to pay 421 weeks and 4 days of the award thereafter. The trial judge, however, failed to make specific findings of fact regarding the extent of disability the employee would have experienced without any preexisting disabilities. We therefore remand the case so that such a determination can be made. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Case Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP. J., joined. Richard W. Mattson, Nashville, Tennessee, for appellants, Morrow Trucking, Inc. and Logistics Personnel Corporation. Ricky L. Boren, Jackson, Tennessee, for appellee, Robert Foster. Paul G. Summers, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for appellee, Second Injury Fund, State of Tennessee. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff was forty-nine years of age at the time of this trial. He had completed nine years of school and does not have a GED. His work history is primarily labor-type jobs and truck driving. At the time the plaintiff was hired by the defendant, he submitted a physical report to the defendant. In that report, the plaintiff reported that he had diabetes and was taking pills for it. The record reflects the plaintiff told the defendant at the time of the pre-hire interview that he had a significant diabetic problem. The plaintiff testified that to be able to drive a truck diabetics had to be controlled by medication but if the diabetic is controlled by insulin a person is prohibited by Department of Transportation [DOT] regulations from driving. The plaintiff had been treated for back pain and diabetes prior to going to work for the defendant. According to his physician of many years, the plaintiff was diagnosed with diabetic peripheral neuropathy, a disease caused by uncontrolled diabetes, in June of 1997. The plaintiff began working for the defendant in October of 1999. On or about November 4, 1999, as the plaintiff was descending from his truck to put fuel in the tank, he fell and struck the left side of his back on the concrete platform upon which the pumps sat. The plaintiff attempted to continue his assigned delivery route but was unable to do so and had to return to the drivers' terminal because of back pains. The plaintiff subsequently saw Dr. Michael Glover for treatment and Dr. Joseph C. Boals for evaluation. The plaintiff testified that as a result of his back injury he was ultimately unable to drive a truck because his left leg became so weak he could not depress the clutch pedal on a truck. Medical Evidence Dr. Y. N. Pakkala testified that he first started treating the plaintiff in 1993. The plaintiff complained of low back pain and was given medication. In March of 1994, the plaintiff again complained of back pain. Dr. Pakkala found a muscle spasm suggesting a sprain of the plaintiff's back. In April 1995, he diagnosed the plaintiff as being diabetic. Dr. Pakkala testified the plaintiff -2-