Carrier of G.Ub.M K. Constru Ctors v. Bobb Y E. Stil Es v. Jim

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee appeals an award of twenty percent permanent partial disability as inadequate. We modify the award. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Blount County Circuit Court Modified and Remanded. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. J. Bartlett Quinn, Chattanooga, Tennessee, for the Appellant Bobby E. Stiles E. Blaine Sprouse, Nashville, Tennessee, for the Appellee Jim Farmer, Director of Division of Worker's Compensation, Tennessee Department of Labor. MEMORANDUM OPINION 1 FACTS Plaintiff Argonaut Insurance Company (Argonaut) brought this declaratory judgment action against Defendant Bobby E. Stiles (Stiles) to determine its liability to Stiles under the Tennessee Workers' Compensation Act for a May 1998 injury. Argonaut is the workers' compensation insurer for G.UB.MK Constructors. Stiles then filed a counter-complaint against Argonaut and Jim Farmer, Director of the Division of Workers' Compensation, Tennessee Department of Labor (Second Injury Fund). Stiles was born January 1, 1941 and attended elementary school through the fifth grade. His work history consists of numerous positions as an unskilled manual laborer. In 198, Stiles was injured while working as a miner. Due to this injury, Stiles filed a workers' compensation action, which was settled with Stiles receiving an award of 9.9 percent disability to the body as a whole. On December 2, 1999, this case came to trial before the Circuit Court for Blount County. The trial consisted of the testimony of three witnesses, Stiles, Ms. Dorothy Edwards1, a vocational expert, and Lester F. Littell, III, M.D., Stiles' authorized treating physician, who testified by deposition. Stiles testified that besides the 198 and 1998 injuries, he also suffered a 1995 injury to his lower back which required surgery. He testified that although the 1995 injury was work-related, he did not notify Argonaut or G.UB.MK of this injury. In describing the effects of the 1998 injury, Stiles testified that he suffers from neck pain, headaches, and numbness in his right arm and hand. Additionally, Stiles testified that these symptoms were not present before the 1998 injury. As an example of his changed circumstance, Stiles testified that mowing his yard with the assistance of a riding lawn mower used to take him less than two hours but now takes all day. His daughters do his housework, and he takes his meals with his daughters or his brother, who lives nearby. He stated he has trouble driving long distances _ 2 to 3 miles. This testimony was uncontroverted. Ms. Edwards testified that due to his age, education, and physical restrictions, Stiles was 1 percent vocationally disabled with no access to the labor market. She also testified that Stiles has no transferable job skills. No other expert evidence was offered on the issue of vocational disability. Dr. Littell assessed Stiles as having a 15 percent medical disability to the body as a whole resulting from the 1998 injury. Dr. Littell also testified that Stiles has the following permanent medical restrictions: 1) Able to sit for only 15 minutes at a time; 2) Able to stand/walk for only 2 minutes at a time; 1 Incorrectly identified as "Ms. Morris" in the trial judge's memorandum of March 15, 2, though this error was corrected in the Judgment entered April 28, 2. 2