Ronald Eugene Jones v. Cracker Barrel Old Country

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 its findings of fact and conclusions of law. The employer, Cracker Barrel Old Country Store, Inc., argues that the trial court erred by: (1) evaluating the permanent total disability claim of the employee, Ronald Eugene Jones, pursuant to Tenn. Code Ann. _ 5-6-242 instead of Tenn. Code Ann _ 5-6-27(4)(B); (2) finding the employee entitled to permanent total disability benefits when the preponderance of the evidence indicated he could return to "an occupation which would produce an income"; (3) holding the employee's claim was not limited to the multipliers established by Tenn. Code Ann. _ 5-6-241; and (4) entering the order of judgment without a reapportionment clause compelling the second injury fund to reimburse the employer in the event the employee dies before reaching age sixty-five.1, 2, 3 We agree with the employer that a permanent total disability claim should be evaluated on the basis of Tenn. Code Ann. _ 5-6-27(4)(B); the preponderance of the evidence indicates he could return to "an occupation which would produce an income"; and his claim is governed by the Tenn. Code Ann. _ 5-6-241 multipliers. While the last issue concerning a reapportionment clause is pretermitted, we nevertheless disagree with the employer. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court 1 The employer complains about the dismissal of the appeal when the notice of appeal and transcript of the evidence were filed prior to the entry of the final judgment, since Rule 4(d) of the Tenn. R. App. P. permits a prematurely filed notice of appeal to be treated as filed after the entry of judgment and on the day of its entry. The per curiam order of the Supreme Court dismissed the appeal on February 13, 23, not because the transcript had not been timely filed as thought by the employer, but because the final judgment had not been entered. However, the final judgment had been entered in the trial court on February 6, 23. 2 The employee states the issues in a slightly different manner. They will be inherently discussed as we discuss the employee's complaints. 3 The second injury fund takes the same position as the employer except on the reapportionment clause issue. Reversed in Part, Modified in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, SP. J., joined. James T. Shea IV, Knoxville, Tennessee, attorney for Appellant, Cracker Barrel Old Country Store, Inc. Roger L. Ridenour, Clinton, Tennessee, attorney for Appellee, Ronald Eugene Jones. Paul G. Summers, Attorney General and Reporter, E. Blaine Sprouse and Richard M. Murrell, Assistant Attorney Generals, for Appellee, Sue Ann Head. MEMORANDUM OPINION I. Factual Background Ronald E. Jones, the employee, was forty-six years old when this cause was tried. He left high school in the eleventh grade, has no general equivalency diploma and has no other formal training or education. After he dropped out of school he took care of his grandfather, who had a heart condition. Years later he took a job as a laborer for a construction company. Next, he worked as a night watchman for approximately five years. Then he took a job with Cracker Barrel Old Country Store, Inc., the employer. He worked for the employer for fifteen years, washing dishes, bussing tables and unloading trucks. On December 27, 1992, while in the employ of the employer, the employee sustained a knee injury. He returned to work with restrictions against stooping, bending and squatting. He settled this workers' compensation claim for 15 percent to the body as a whole. On April 23, 1998, the employee, while working for the employer, sustained an injury to his neck, which was diagnosed as a cervical radiculopathy at C7. This workers' compensation claim was settled on January 22, 22, for 19 percent to the body as a whole. He returned to work after the neck injury, but on September 18, 1998, while lifting a case of green beans at work, the employee sustained an injury to his low back. He was treated by Dr. Cletus J. McMahon, Jr., an orthopedic surgeon, who diagnosed the employee's injury as a low back strain, an injury to the soft tissue, the ligaments, muscles and tendons. Dr. McMahon discharged the employee from his care on March 29, 1999, assigning him a 5 percent impairment to the body as a whole. The employee returned to work for the employer with the primary restriction of no lifting over twenty-five pounds. He worked a modified schedule of 18 to 2 hours until he quit because of pain in June, 1999. -2-