Donald Ferrell v. York Trucking, Inc.,

This workers' compensation appeal has been referred to theSpecial Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had suffered an assault during the course and scope of his employment, which resulted in a permanent disability of 4 percent to the body as a whole as a result of a psychiatric injury. The trial judge also awarded the plaintiff temporary total disability, future medical benefits and other costs. We affirm the judgment of the trial court. 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 FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellants, York Trucking, Inc. et al. H. Thomas Parsons, Manchester, Tennessee, for the appellee, Donald Ferrell. 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 findings, 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). Plaintiff's Biography The plaintiff was age fifty at the time of the trial. He had not completed the eighth grade in school. His work history consisted almost entirely of being a truck driver and tow-motor operator. He is married and does not have any children. History of Previous Injuries The plaintiff had a workers' compensation claim in 1982 and another in 1991. Each of these was settled. The 1991 injury occurred when the plaintiff fell from a truck of a previous employer. The plaintiff injured his neck, shoulder and lower back in that accident. Approximately nine months after the 1991 incident, the plaintiff developed a condition known as syncope, which is a fainting episode that results from coughing that causes restricted blood flow to a person's heart. In addition to the syncope, the plaintiff developed blurred vision, dizziness, headaches and depression. The episodes of fainting diminished somewhat prior to the injury in this case. The plaintiff testified the other symptoms he suffered never stopped bothering him. Discussion of Current Case This case arose out of an occurrence on July 15, 1997. The plaintiff and his wife, who drove with him because of his history of fainting, were in the course of their employment with the defendant employer. They stopped at a restaurant in Murfreesboro at approximately 3: a.m. The plaintiff and his wife went into the restaurant and got food to go. When they returned to the truck, the plaintiff's wife got into the truck and took the passenger's seat. The plaintiff testified he heard a noise at the back of the truck and went in that direction to investigate. The plaintiff said he heard something and turned and saw a man in a blue shirt. Then said the plaintiff, "my lights went out in Georgia." The plaintiff's wife did not see or hear anything occurring, but she became concerned when the plaintiff did not come into the truck. She testified she looked out toward the back of the truck and saw the plaintiff lying on the ground about half way down the length of the truck. She went to the plaintiff and held him in her lap. She got the attention of another truck driver who summoned aid from the restaurant. This driver left the area without being identified. An employee of the restaurant came out to help with the plaintiff and verified that the plaintiff was lying on the ground in an unconscious state. The only difference between the witness' testimony and that of the plaintiff's wife was that the restaurant employee said the plaintiffwas lying much nearer the driver door than did the wife. -2-