Everlyn Hicks v. Tennessee Dept. of Labor, et al 02S01-9607-CH-00067
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Dewey C. Whitenton,
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. The employee, Hicks, contends the evidence preponderates against the trial court's finding that she is less than permanently and totally disabled from her work-related accident and that the trial court erred in not applying Tenn. Code Ann. section 5-6-28(a). As discussed below, this panel concludes the trial court should be affirmed in both respects The employee or claimant is sixty-two years old and has an eighth grade education. She has worked for the employer, Harmon Automotive, since 1973. In 1983, she injured her hand at work and received an award of permanent partial disability benefits. Her present claim grows out of a second injury suffered by her on May 6, 1993, when she injured her back while lifting a box of mirror bases. As a result of this injury, she received back surgery and was released to return to light duty work in January of 1994. She did return to work in May of the same year, when light duty work became available. In the same month, she again injured her back. She testified that she is no longer able to work. She has settled with her employer and that settlement is not involved in this appeal. The chancellor found the claimant to be less than permanently and totally disabled and dismissed her claim against the Second Injury Fund. 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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). An employee who has previously become disabled from any cause and who, as a result of a later compensable injury, becomes permanently and totally disabled, may receive disability benefits from his or her employer only for the disability that would have resulted from the subsequent injury. Tenn. Code 5-6-28, Cameron v. Kite Painting Co., 86 S.W.2d 41 (Tenn. 1993). However, such employee may be entitled to recover the remainder of the benefits allowable for permanent total disability from the Second Injury Fund. Id. 2
Hardeman
Workers Compensation Panel
Michael Eugene Smith v. Goodyear Tire & Rubber Co With Order 02S01-9603-CH-00037
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. William Michael Malone,
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
Smith
Workers Compensation Panel
Michael Eugene Smith v. Goodyear Tire and Rubber Company 02S01-9603-CH-00037
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. William Michael Maloan,
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 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.
Mallard vs. Tompkins M2000-00162-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Brothers
The trial court entered judgment on a jury verdict for the defendant. The plaintiff argues on appeal that the trial court committed reversible error by failing to exclude from the jury a woman who revealed that she knew some members of the defense attorney's family. We affirm the trial court.
