Nps Energy Services, Inc., Appellant v. Nelson E. Moore, Appellee

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer/appellant contends: (1) that the trial court erred in determining that the employee suffered an injury arising out of and in the course of his employment, and (2) that the trial court erred in awarding forty percent (4%) permanent partial disability to the body as a whole. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. Frank G. Clement, Jr., Sp. J., delivered the opinion, in which Frank F. Drowota III, C.J., and Joe C. Loser, Jr., Sp. J., joined. Raymond S. Leathers, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant NPS Energy Services, Inc. George E. Copple, Jr., Nashville, Tennessee, for the appellee Nelson E. Moore. Memorandum Opinion Nelson E. Moore (Moore), appellee, is a journeyman painter who was employed by NPS Energy Services, Inc. (NPS), appellant, from September 1998 to December 1998. Moore was hired by NPS to abate lead from the Cumberland City Generating Plant of the Tennessee Valley Authority, a customer of NPS. On November 4, 1998, while working in the basement of the Cumberland City facility, Moore claims to have suffered a compensable injury as a result of exposure to airborne cleaning acids and caustic materials. NPS denies the assertion that Moore was exposed to or injured 1 by acids or caustic materials while employed by NPS. NPS filed the complaint for declaratory judgment and Moore filed a counterclaim. The matter was tried on October 2, 22. The trial court entered its final order the following day finding that Moore was exposed to chemicals while employed by NPS that caused occupationally induced asthma and awarded Moore forty percent (4%) permanent partial disability to the body as a whole. NPS filed this appeal. Our review is de novo upon the record, 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). We are not bound by the trial court's findings but, instead, conduct an independent examination of the record to determine where the preponderance of evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Nevertheless, considerable deference must be accorded to the trial court's factual findings on issues related to the credibility of witnesses and weight to be given their testimony. Krick v. City of Lawrenceburg, 945 S.W.2d 79, 712 (Tenn. 1997). Conclusions of law, however, 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). On November 4, 1998, Moore was working in the basement area of the Cumberland Furnace facility. This area is very large, approximately 5 feet wide, 3 feet deep and 2 feet high. The unit Moore was working on was shut down for 8 days for scheduled maintenance. Moore was wearing regular painting work clothes. Needing a "scissor lift" to perform his duties, Moore went to an area of the basement near what is referred to as the minor maintenance room. He found two scissor lifts, but both were missing an electrical box that was necessary to operate the lift. Moore searched in the maintenance room, and then, he went up to the next floor. Still unsuccessful in his search for an electrical box, Moore returned to the basement in an area near the minor maintenance room at which time Moore claims his nose started running, his eyes started burning and began to water, and his throat became sore. He also alleges that his face felt like it had needles in it. Seeing a sign that read "Warning, Acid" , Moore went to a nearby bathroom and washed his eyes and face with water. Moore claims that he felt these sensations for 3 to 6 seconds. The pricks and tingling sensations stopped, and other sensations generally subsided as well. Prior to January 1998, the Cumberland City facilityhad been using sulphuric acid and sodium hydroxide, identified as "caustic", to remove impurities from resin beds in the water purification system. In the area where Moore claims to have been injured, there were signs which read: "Danger: Caustic Lines", "Danger: Acid Line", "Danger: Acid Caustic Outlet", and "Danger: Acid and Caustic." Other signs indicated the lines were pressurized, but the evidence suggested that the lines had not been under pressure for months. At the time of the incident, the facility was no longer using acid or caustic for purification, however, the chemicals remained in tanks and pipes in the area at issue. NPS insists that Moore did not suffer an injury arising out of his employment and during the course of his employment. Specifically, NPS contends there was no evidence of a chemical leak on November 4, 1998. Moreover, NPS contends that even if Moore were exposed, the chemicals were 2