Douglas Edward Smitley v. Suburban Manufacturing Co.

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. The defendant Second Injury Fund appeals the trial court's decision that the Fund is liable for seventy percent of the awarded permanent total disability to the body as a whole. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Rhea County Chancery Court is Affirmed BYERS, SR.J., in which BARKER, J., and PEOPLES, SP.J., joined. E. Blaine Sprouse, of Nashville, Tennessee, for Appellant, Second Injury Fund. Michael Augustine Wagner, of Chattanooga, Tennessee, for Appellee, Douglas Edward Smitley. Robert J. Uhorchuk, of Chattanooga, Tennessee, for Appellee, Suburban Manufacturing Company. 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 finding, 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). Facts The plaintiff was forty-six years of age at the time of trial. He dropped out of high school in the eighth or ninth grade and does not have a graduate equivalency degree. He has worked most of his life in manual labor jobs. In 1997, before the plaintiff began working for the defendant company, he underwent lumbar diskectomy surgery to relieve pressure on a nerve root. He testified that he began having problems with his neck in 1997, caused by a "pinched nerve." Dr. Paul Broadstone, the doctor who performed the surgery, followed up with the plaintiff and reported that he was doing well. After his back surgery, the plaintiff began working for the defendant company, Suburban Manufacturing. He worked as a press operator and metal finisher. He became a permanent employee in October of 1998 after a physical examination which determined that no special accommodations needed to be made for his employment. On January 2, 1999, the plaintiff tripped over an air hose at work, falling to the floor and landing on his hip and shoulder. Suburban acknowledged this accidental injury to the plaintiff's lower back as compensable under workers' compensation law, and provided medical care and treatment for the injury. After the plaintiff's fall, he saw Dr. Broadstone and was later admitted to Erlanger Medical Center. He was ultimately treated by Dr. Scott Hodges for his low back injury of January 2, 1999. Dr. Hodges performed a diskectomy and fusion at the L5-S1 level on June 23, 1999. Dr. Hodges testified that he would assign the plaintiff a permanent physical impairment rating of five percent to the body as a whole and that his date of maximum medical improvement was January 18, 2. Dr. Hodges also testified that he placed permanent work restrictions on the plaintiff of lifting no more than thirty pounds occasionally, twenty pounds frequently, and changing positions every hour. The plaintiff returned to work on September 2, 1999, but reported continued cervical problems that were later found to have been caused by non-union in the 1997 fusion surgery. The plaintiff testified that on October 11 or 12, 1999, while performing a task that required him to bend his neck and look down in a squatted position repetitively, he felt a sudden "pop" in his neck and then the slow onset of a blinding headache. The plaintiff saw both Dr. Hodges and Dr. Broadstone again and he determined that he would not be able to return to work because of the intense neck pain he was having. Because of the continued cervical problems and non-union of the original fusion surgery the plaintiff underwent a second fusion surgery in March of 2. Dr. Broadstone assessed an additional two percent permanent anatomical impairment as a result of the second surgery. Medical Evidence -2-