William Jerry Johnson v. Cna Insurance Company

This workers' compensation appeal was referred to the Special W orkers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _5-6- 225(e)(3) (Supp. 1998) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This is an appeal by CNA Insurance Company, the workers' compensation insurance carrier forTJ & L Construction Company, from a judgment of the Chancery Court of Chester County finding that plaintiff was entitled to workers' compensation benefits on the basis of total and permanent disability to the body as a whole. It was stipulated that the plaintiff, William Jerry Johnson, was injured on February 14, 1994, during the course of his employment for TJ & L Construction Company. While lifting tires, he injured his back. In the only issue presented, the insurance carrier states that the evidence preponderates against the trial court's finding of total and permanent disability, since jobs are available to the employee within his vocational skill level and physical limitations. The plaintiff and his wife testified in open court. The plaintiff stated he was born June 1, 1945, and had an eighth grade education, having quit school before completing the ninth grade. The plaintiff testified that he obtained a G.E.D. in 1995 or 1996.1 Except for four years service in the Navy as a cook, the plaintiff had several jobs, all of which involved the operation of heavy equipment and manual labor. The plaintiff testified that since the accident, he has had severe back pain and is never completely free of pain in his lower back and right hip. He testified that he obtained nerve blocks from his doctor, which made the pain bearable for about two months. The plaintiff testified that he has pain when he bends, does much lifting, or sits for more than thirty to forty minutes. When driving an automobile, he has to stop and walk around because of the pain. He cannot stand in one place for very long or walk very far without stopping and resting. He testified that he cannot bend, run, or jump without pain. He stated that he can no longer bowl, dance, ride horses, or have sex with his wife. He cannot 1Educational functional testing done by Dr. William M. Jenkins on February 13, 1996, revealed that the plaintiff functioned at a tenth grade level in reading, fourth grade level in spelling, and seventh grade level in arithmetic. 2