Michael Eugene Smith v. Goodyear Tire & Rubber Co With Order

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance 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 contends the award of permanent partial disability benefits is excessive and, particularly, that the award exceeds the limitation contained in Tenn. Code Ann. section 5-6- 241(a)(1). As discussed below, the panel has concluded the award should be affirmed. The employee or claimant, Smith, is forty-seven and a high school graduate. He has worked for Goodyear since 1969, at several different jobs, all involving manual labor. On May 13, 1994, he injured his back lifting. The claimant was referred to an orthopedic surgeon, who diagnosed a central disc herniation at L5-S1, which was surgically repaired bilaterally. As a result of the injury and surgery, he can lift only 3 pounds frequently and 5 pounds occasionally. He is further limited in his bodily activities and has a permanent medical impairment of ten percent to the whole body. The operating surgeon testified that the claimant is medically disqualified from returning to his pre-injury job or any other one which would require heavy lifting or painful activity. When the claimant returned to work after a period of recuperation, he was offered a choice of jobs. The one he accepted was within his limitations, but he receives a lower hourly wage than he was earning before the injury. He continues to have pain and stiffness from working. The chancellor awarded permanent partial disability benefits on the basis of forty 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 fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). For injuries occurring after August 1, 1992, in cases where and injured worker is entitled to permanent partial disability benefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award the employee may receive is two and one-half times the medical impairment rating. Tenn. Code Ann. section 5-6-241(a)(1). If the offer of return employment is not reasonable in light of the circumstances of the employee's physical disability to 2