David K. Burnette v. The Travelers Ins. 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. This appeal has resulted from a finding by the trial court that plaintiff, David K. Burnette, was entitled to 1 percent permanent disability benef its as a result of his injury on December 18, 1994. Since he had a prior award of disability, the court apportioned the award by directing his employer, Target Stores, to pay 15 percent and the State's Second Injury Fund to pay the remaining 85 percent. The State has appealed insisting the evidence is not sufficient to support a 1 percent disability award and that the apportionment was not proper under TENN. CODE ANN. _ 5-6-28. We agree with this contention and the trial court's judgment as to the extent of permanent disability is modified as hereinafter indicated. Employee Burnette was 37 years of age and dropped out of school in the 11th grade. He later obtained a G.E.D. certificate and worked as a carpenter in the construction industry for about thirteen years. In 1988, while working in California, he sustained work-related injuries which resulted in an award of workers' compensation benefits of 3 percent to the body as a whole. These injuries were two herniated disks in his neck and two herniated disks in his low back. After recovering from surgical procedures, he moved to Tennessee and worked for some period of time with two different fast food businesses. He was employed as an assistant manager at each company. In September, 1992, he began working at Target Stores testifying he was still having pain from his injuries and that he was still taking pain medication. While working at Target, he attempted to further his education by attending classes at Pellissippi State. He did this for several years, but had transferred to the University of Tennessee by the time the case was heard in the trial court. His goal was to obtain a degree in special education and become a special education teacher. The record is not clear as to his status in this endeavor but he said he was still taking basic courses and had not been accepted in the College of Education. 2