Katherine Elaine Sons v. Zurich American Group

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. In this appeal, the employee insists the trial court erred in its application of the successive injury rule and by applying the caps contained in Tenn. Code Ann. _ 5-6-241(a) to the medical impairment resulting only from her most recent injury. The employer's insurer insists the evidence preponderates against the trial court's finding that the employee is permanently disabled to any extent. As discussed below, the panel concludes the successive injury rule is inapplicable and the extent of the employee's permanent disabilitymust be determined in accordance with established rules relating to pre-existing conditions. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Vacated; Cause Remanded LOSER, SP. J., in which HOLDER, J., and GOLDIN, SP. J., joined. Joseph H. Crabtree, Jr., Stewart & Wilkinson, Memphis, Tennessee, for the appellant, Katherine Elaine Sons Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the appellee, Zurich American Group MEMORANDUM OPINION The employee or claimant, Ms. Sons, initiated this civil action to recover workers' compensation benefits for a work related back injury. The employer's insurer, Zurich American, denied liability. After a trial on the merits, the trial court awarded the employee, among other things, permanent partial disability benefits based on 1 percent to the body as a whole. The employee has appealed contending the award is inadequate. Appellate review is 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. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in- court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Extent of vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant is sixty years old and has a tenth grade education. She obtained a GED certificate in about 1973, but has no other formal education. She began working in 1979 at a nuclear power station. Her job was to wash protective clothing. Later in the same year, she began working as a labor foreman in construction work. Her work through 199 consisted of very strenuous, very heavy labor. Her duties included, but were not limited to running conduit and wiring in buildings. She returned to Covington in 199 and tended a bar. In 1994, she was hired by Dyncorp, a general maintenance company which performed general maintenance at the old navy base in Millington. Around June 1, 1998, the maintenance contract was awarded to J. A. Jones Management, at which time the claimant went to work for the employer, J. A. Jones. She worked mostly with electrical lines and performed many of the duties that an electrical worker with Memphis Light, Gas & Water would perform. She would roll and unroll lines, replace poles, replace lights and fixtures inside buildings and install new wiring. She also worked with air conditioners, replacing filters and cleaning ducts. All of the tasks were heavy and strenuous work requiring lifting, bending, twisting, turning, etc. In May 1998, the claimant developed foot problems and underwent a surgical procedure on her feet. After this surgical procedure, she began experiencing back pain. A diagnostic test revealed a ruptured disc. At the time, neither the foot problems nor the back problems were work related. On May 18, 1998, Dr. Dowen E. Snyder performed corrective surgery on her lower back, removing large fragments of disc at two levels. She returned to work in July of the same year. However, she experienced pain both during and after work. On September 15, 1998, the claimant returned to Dr. Snyder with complaints of recurrent pain in her back and left hip and leg. She also described an incident involving a fall from a treadmill, in which she landed on her lower back. The treadmill event caused no additional pain. The doctor prescribed an epidural block, medication, rest and therapy. When the pain didn't wane, Dr. Snyder ordered a second magnetic imaging resonance test. On September 3, 1998, the claimant stepped in a hole at work and suffered immediate and -2-