John Shultz v. City of Lawrenceburg, et al .

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, City of Lawrenceburg, contends (1) the evidence preponderates against the trial court's finding of a compensable injury by accident arising out of and in the course of employment, (2) the evidence preponderates against the trial court's finding that the employee's compensation rate is $38.8, (3) the evidence preponderates against the trial court's award of temporary total disability benefits from August 5, 1994 through October of 1995 and (4) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, John Schultz, was forty-nine years old at the time of the injury. He has an eighth grade education and a GED. He has worked as a heavy equipment operator since 1968. On January 21, 1994, while working for the employer, he injured his neck and back while operating a backhoe as a jackhammer on frozen ground. He injured his left shoulder again on August 5, 1994 while working for the employer and running out of a hole filling with water. He attempted to work the next day before going to a doctor's appointment, then was totally disabled until October 18, 1995, when he reached maximum medical improvement. The claimant was treated or evaluated by a number of physicians and assigned permanent impairment ratings of from six to ten percent from the injuries which the physicians related to the work he was performing. He continues to have neck and shoulder problems. The record contains conflicting documentary evidence as to the employee's average weekly wage, but the employer had actually paid benefits of $38.8 from the August injury until the date of maximum medical improvement, for his temporary total disability. The trial court awarded no additional temporary total disability benefits, but did award the claimant's reasonable and necessary medical expenses and permanent partial disability benefits based on thirty-two percent to the body as a whole, payable in a lump sum. The claim against the Second Injury Fund was dismissed. 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). 2