Joanna Swiger v. Nashville Union Stockyard

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 issues involved in this appeal are whether the plaintiff, Joanna Swiger, had waived her right to seek reconsideration pursuant to TENN. CODE ANN. _ 5-6-241(a)(2), and whether Ms. Swiger made a reasonable attempt to return to work. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO A BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. W. I. Howell Acuff, of Cookeville, Tennessee, for the appellant, Joanna Swiger. David J. Deming, of Nashville, Tennessee, for the appellee, Nashville Union Stockyard Restaurant. 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. 1998). The trial court in this case held that Ms. Swiger had knowingly and voluntarily waived her right to reconsideration of her vocational disability, and the court further held that Ms. Swiger did not make a reasonable attempt to return to work after the injury, and was therefore not entitled to seek reconsideration. We do not find that the evidence preponderates against these findings, and therefore affirm the ruling of the trial court. Facts/Medical Evidence Ms. Swiger injured herself in August 1995 when she slipped in a cooler while working for the Stockyard Restaurant. She settled her workers' compensation claim for 24 percent permanent partial disability to the body as a whole, and in June 1996, Ms. Swiger signed an order approving the settlement that she had reached. Although she was unrepresented at the time, Ms. Swiger had discussed with the judge the issue of waiving her right to reconsideration of her vocational disability, which was a part of the settlement. After her injury, Ms. Swiger had restrictions that would not allow her to continue working as a server at the restaurant. Paulene Krebs, the nurse case manager, testified that a server's position was the only job ever identified to her that was available to Ms.Swiger, and that she tried repeatedly to work with the restaurant to find Ms. Swiger another position. Andrew Penland, the controller at the restaurant, contends that the restaurant tried to return Ms. Swiger to work a number of times by offering Ms. Swiger a number of positions that would be suitable for her, such as a hostess or answering the telephone, but that Ms. Swiger turned down each offer. Michael Baker, a manager at the restaurant, testified that the restaurant tried to return Ms. Swiger to work several times, and actually still considered Ms. Swiger an employee of the restaurant at the time of the settlement. Mr. Baker also testified that Ms. Swiger had expressed interest in returning to work by picking up a uniform, but that she failed to attend two scheduled orientations. Mr. Baker further testified that he phoned Ms. Swiger after these missed orientations, however Ms. Swiger simply stated that she would not work there. Dr. Walter Bell was Ms. Swiger's treating physician. Dr. Bell testified that Ms Swiger had injured her lower rib cage and upper abdominal wall area of her right side when she slipped in the cooler at work. Dr. Bell placed Ms. Swiger on work restrictions of not performing any repetitive activity that produces pain and Ms. Swiger could not lift more than 25 pounds. Dr. Bell also advised Ms. Swiger to use common sense in her restrictions and not do anything that seemed to cause pain. Dr. Bell was of the opinion that Ms. Swiger could not perform the position of a server, but that she could perform nearly any other position at the restaurant. Discussion The first issue for consideration in this case is whether Ms. Swiger knowingly and voluntarily waived her right to reconsideration pursuant to TENN. CODE ANN. _ 5-6-241(a) (2), which provides that an employee may seek reconsideration of vocational disability if the employee is no longer -2-