Brenda Gail Ward v. United States Fidelity and Guaranty Company

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer contends the evidence preponderates against the award of permanent disability benefits. The panel concludes the judgment should be reversed and the cased dismissed. The only issue litigated at trial was the extent of the claimant's permanent disability, if any. On February 19, 1993, the employee or claimant, Brenda Gail Ward, was sweeping a floor for her employer, United Parcel Service, when she suddenly slipped and fell, injuring her back, neck and shoulder. On April 7, 1993, she visited Dr. David Hauge, who treated her until January 26, 1994. Dr. Hauge diagnosed chronic degenerative changes unrelated to the above accident. His diagnosis was confirmed by an MRI of the spine. He found no evidence of an acute injury, except some muscle spasm which was resolved with physical therapy. He estimated her permanent impairment from her degenerative changes at nine percent to the whole body, but provided no proof of medical causal connection to the work-related accident. Approximately two years after the accident, the claimant was evaluated by Dr. William E. Kennedy, who found no permanent anatomical injury or change as a result of the work-related accident, but assessed her permanent impairment from her subjective complaints of pain at eight percent to the whole person. A vocational expert, Norman Hankins, estimated her industrial disability at between thirty-four and sixty-one percent, depending on her physical restrictions. The chancellor awarded permanent partial disability benefits based on forty-five percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.