Martha I. Johnson v. Knox Co. Board of Educ.,

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 to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff is totally and permanently disabled and further found the Knox County Board of Education liable for 6 percent of the award and the Second Injury Fund liable for 4 percent. 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 E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. Paul G. Summers, Nashville, Tennessee, for the appellant Second Injury Fund. Stephen E. Yeager, Knoxville, Tennessee, for the appellees Knox County Board of Education and Tennessee School Boards Association. Thomas S. Scott, Jr., Knoxville, Tennessee, for the appellee Martha I. Johnson. 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). Questions of law are reviewed de novo without a presumption of correctness. Peace v. Easy Trucking Co., 38 S.W.3d 526 (Tenn. 21). Facts The plaintiff was 39 years of age at the time of trial. She did not complete high school and did not pass the GED exam. She completed nursing training and took courses in business technology through the Tennessee Technology Center. She is not married and has one child. The plaintiff had various medical conditions prior to the injury_sustained in 1998_at issue in this case, including dyslexia, epilepsy (which she had from birth), a back sprain sustained in 199 while working as a nurse's assistant, and a prior back injury suffered while working for the defendant School Board in 1993, and a stroke-like episode in 1996 caused by toxic levels of Dilantin in her system. In addition, the plaintiff suffers from choreoathetosis or truncal ataxia, a condition that causes her to have involuntary movements. When the plaintiff first went to work for the defendant School Board in December of 1991, she listed the previous back injury that she sustained while working for a nursing home. She also described her epileptic condition. The plaintiff did, however, in her application state that she suffered no disability resulting from the injury at the nursing home or from the epilepsy and that she could perform her duties as a custodian. As a result of the 1993 injury, the plaintiff received temporary total benefits and medical payments. She returned to work but did not claim any permanent disability benefits from this injury. In 1995 or 1996, the plaintiff suffered a toxic episode from a build-up of Dilantin in her system. The effect on the plaintiff was similar to a stroke. As a result of this episode, the plaintiff lost control over her left side, experienced a lack of feeling in her feet, and her left arm became drawn up. The plaintiff was hospitalized for this and was treated for a considerable time. After some recovery from the episode, the plaintiff wished to return to work. Her doctor released her to return to work, but placed restrictions in her written release. When the plaintiff presented her written medical release to William Anderson, III, the person who reviewed medical reports, he told the plaintiff she could not return to work with the restrictions. The plaintiff then persuaded her doctor to remove the restrictions and she returned to Mr. Anderson, who allowed her to return to work. Mr. Anderson testified "if the doctor sends a slip and says no restrictions, then I have to let them back to work." Mr. Anderson testified he knew the plaintiff was not able to do her work before the injury of 1998, which is the subject of this case. When asked if she was unable to do the job prior to the 1998 injury he responded, "no doubt about it." Mr. Anderson testified "the only reason I kind of buried my head to it [the disabilities of the plaintiff] was she had been a good employee." He went on to explain she needed to work and others helped her. All parties agree the School Board had a written policy of not allowing anyone with medical -2-