Ray Dunnagan v. Foamex

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. In this appeal, the employer insists (1) the action is time barred, (2) the evidence preponderates against the trial court's finding that the employee's restrictive lung disease was caused by exposure to silica at work and (3) the award of permanent partial disability based on 65 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Joseph M. Crout, Memphis, Tennessee, for the appellant, Foamex Ricky L. Boren, Jackson, Tennessee, for the appellee, Ray Dunnagan MEMORANDUM OPINION The employee or claimant, Ray Dunnagan, initiated this civil action on April 5, 21 to recover workers' compensation benefits for an alleged occupational disease resulting from exposure to chemicals at work. By its answer, the employer denied liability. After a trial on the merits, the trial court resolved the issues in favor of the employee, awarding, among other things, permanent partial disability benefits based on 65 percent to the body as a whole. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.