# FILED

December 9, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE SUP REME COUR T OF TENN ESSEE WORKERS' CO MPENSA TION A PPEA LS PA NEL KNOXVILLE, SEPTEMBER 1 997 SESSION

JAMES WALTER DELLINGER ) SEVIER CIRC UIT ) Plaintiff/Appellee ) ) VS. ) Hon. William R. Holt, J r., ) Circuit Ju dge THE ARNOLD EN GINEERING ) COMPANY AND LUMBERMENS ) MUTUAL CASUALTY COMPANY ) ) NO. 03S01-9703- CV-00033 Defendants/Appellants ) ) and ) ) LARRY BRI NTON, JR., D IRECTOR ) OF THE SECOND INJURY FUND ) ) Defendant/Appellee )

For the A ppellants: For the A ppellees: Timothy W. Conner William O. Shults Nan R. Jenne Lucy Dunn H ooper 1130 First Amer ican Center 335 East Main S t. 507 S. Gay St. Newport, Tenn. 37821 Knoxvil le, Tenn. 37902 Sandra E. Keith Cordell H ull Bldg. 2nd Floor 425 5th Avenue N orth Nashvil le, Tenn. 37243-0499

M E M O R A N D U M O P I N I O N

Members of

Panel: E. Riley Anderson, Chief Justice John K. Byers, Sen ior Judge Roger E. T hayer, Sp ecial Jud ge

MODIFIED AND AFFIRMED. THAYER, S pecial Ju dge2 This workers' compensation appe al has been referred to th e Special W orkers' Compensation Appeal s Panel of the Supreme Court in accordance wi th Tenn. Code Ann. § 50-6-225( e)(3) for hear ing and repor ting to the S upreme Court of findi ngs of fact and conclusi ons of law. The trial cour

t found plaintiff, James Walter Dell inger, tota lly dis abled and apportioned 40% of the award of disability against his employer, The Arnold Engineering Company, and 60% against the Second Injury Fund. The judg ment provided the award of benef its would be payable for a period of 40 0 weeks. The employer has

appealed seeking a ruling that (1) the evidence i s not sufficient to establ ish the employee’s back inj ury was work- related and (2) the apportionment of 40% of the award to theemployer i s not supported b y the evidence. The employee conte nds the award should be payable until he reach es his 65th birthday

rather than for just 400 w eeks, whi ch would ex pire whi le he woul d be 63 years of ag e. Employee Del ling er w as inj ured on June 14 , 1994, whi le rem ovin g a li d from a “ball mill”. He testified he was using a large pipe wrench and it slipped and struck him; this caus ed him to fall int o a catwal k when he st ruck his s ide. He sai d that after the incident, he was hurting all over his body and he sought treatmen t for his back and si de at th e hospi tal eme rgenc y ro om. Plaintiff testified h e had worke d for his employer for twent y year s and he generally

worked t en to twelv

e hours a day , seven day s a week. He was 55years of age at the time of his injury and he had completed t he third gr ade. He cannot read and write s very

little. H is job duties

appear to inv

olve a g reat deal of physical acti vity and exertio n. He told the trial cour t he notified his supervis or, Johnny Ogle, and Darrell Adams, the producti on manager, how he was in jured. The emerg ency room physicia n felt he had suffered a str ain and recommended he return to work despite the fact plaintiff showed the doctor a k not or bulge on his stomach. The record is quite clear that he had a number of pre-exis ting medical problems w hich woul d appear to affect his employabili ty to some ex tent. He suffered from Paget’s di sease whic h affected the bones in hi s hips and knees and caused complaints of pain, etc. He had di abetes, a heart mur mur and high bl ood pressure. He had suffered prior

work- related injur ies: three br oken ribs, br

oken finger and a3

knee injury which required wearing a cast. The work-related injuries did not result in workers ’ compensation c laims. After thework- related acci dent in questi on, he continued to work for some peri od of time and then reti red during 1995. Plai ntif f ha s see n ma ny doc tors for h is vari ous m edic al pro blem s. So me h ave testified in thi s proceeding . All of the ex pert medical t estimony is by depositi on. Dr. Samuel W. McGaha, a family practice phy

sician, sai d he had treated plaintiff since 198 7. He also saw him two days after the accident in question. He told the tria l court he was of the opinion pl aintiff was tota lly dis abled. He sai d it was difficult to determi ne whether hi s back pain was related to t he Paget’s di sease or the event at work but he felt i t was work-relat ed at the time of gi ving hi s deposition. Dr. W. J. W alters, a sur geon, first ex

amined plaintiff on Oct ober 24, 1994 and found the bulge or knot on the abdominal wall w as a type of her nia whic h needed to be corrected b y surg ery. This was performed during Dec ember, 1994. The doctor was of the opinion this condition resu lted when the wrench slipped and struck his abdomen. Dr. Dav id H. Haug e, a neurosurg eon, treated plai ntiff for some period of ti me. He recommended physician therapy and found he had an 8% medical impai rment as a result of the ac cident. He related the back complaints to the accident. Dr. Jame s Tem pli n, s peci ali zi ng i n occ upat iona l med ici ne, d id n ot tr eat p lai ntiff but did an independent medical exam for plaintiff. He t estified plainti ff had degenerative thoracic, l umbar and cerv ical disc disease; that th e injury in questi on brought into a symptomatic state the several disc conditions caus ing his bac k pain. He gave a 36% medical impairment fo r all of his medical problems. Dr. Jeffrey A . Uzz le, a physi cal medicine an d rehabilitat ion physic ian, did an independent medical exam for the employer. He stated it took him about six to eight hours to rev iew all of the availabl e medical reco rds. He di d not feel some of the medical recor

ds were consistent w ith the back i njury bei ng work-related. H e said the pre-existing probl ems resulted i n a significant impairment but did not give a percentage. The trial cour

t also heard th e oral testi mony of Dr. N orman E. Hankin s, a vocational consultant, who was of the opinion there were no jobs plaintiff could perform.4 The case is to be reviewed on appeal de novo accompanied by a presumption of the correctness of the findings of fa ct unless the preponderan ce of the evidence is otherwis e. T.C.A. § 50-6 -225(e)(2)

. In resolving disputes in medical testimony, the trial court may choose which medical testi mony to accept. In doing thi s, the court may consider the qualificati ons of the experts, the circumst ances of their ex amination, the in formation avail able to them and the eval uation of the importan ce of that information b y other ex perts. Orman v. Williams -Sonoma, In c., 803 S.W .2d 672, 676 (Tenn . 1991). The first issue raises a question as to whether the back injury was workrelated. In th is connection, the employer argues Dr . Uzz le’s testi mony should be given g reater w eight. Als o, the employer points to cer

tain evidenc e inconsistent with the employee’s testimony. The e mployer’s witnesses, Johnny Ogle and Darrell Adams, testified o rally that plaintiff did not tell them in reporting the accident, he fell into the catwalk. The emerg ency room records did not contain this d escription of how the a cci dent

occ urred. T he em ployer a lsoint rodu ced e vi denc e sho wi ng p lai ntiff did not work ten to twelve hours a day for 365 days a year. In resolv ing the confli cting test imony, the tr ial court ac cepted plainti ff’s version of the events in question and th e expert medical testimony supporting plaintif f’s contentions. On ce the choice ha s been made from competent ev idence, the decision must stand, even thou gh the review is de novo, unless the reviewing court concludes the ev idence preponderates against the choice made. We do not find the evidence preponderates agai nst the decisi on on this point

. The next issu e involves the allocat ion or apporti onment of the 100% awa rd. The employer i nsists that w ith all of plai ntiff’s prior medi cal problems, the allocation of 40% against i t was excessive. Since the prior work-related injuries did not result in approved workers’ compensation clai ms, the apportionment must be made under s ubsection (a) of T.C.A. § 50-6-20 8. This req uires the cour t to estimate and fix

the legal d isability

of the employee from t he last injur y wi thout consideration of the prior injuries or impairments. The empl oyer is liable for thi s disabili ty and the Second Injury Fund then is liabl e for the remainder of the award. Smith v. Liberty Mut ual Ins. Co., 762 S.W .2d 883, 885 (Tenn . 1988).5 It appears to us

that even thoug h plaintiff had a number of pre-exis ting medical problems, this app arently did not greatly affect his ability to work and earn wages. The employer introduced exhibit #9, which is a summary of the employee’s work record during the years 1990-1994, inclusive. This exhibit shows: 1990 48 wks. w orked av. 41.60 hrs. 1991 46 wks. w orked av. 46.21 hrs. 1992 50 wks. w orked av. 39.37 hrs. 1993 50 wks. w orked av. 42.50 hrs. 1994 38 wks. w orked av. 47.00 hrs. Plaintiff disputed t his record saying he worked mor e hours and his

time cards would show

ten to twel ve hours per day, seven days a week. It is obvious the accident of June 14, 1994 was the c rowning blow to hi s employabil ity status

. Howeve r, we can not conclude the e vidence preponderates agai nst the 40%-60% allocation made b y the tri al court. Last, employee Dellinge r contends the aw ard should be pay

able until he reaches age 6 5 rather than for 400 weeks, w hich woul d terminate sooner . We agree with thi s contention. T.C .A. § 50-6-207( 4) [Schedule of Co mpensation] prov ides in a case of permanent total disabilit y, the compensation shall be paid “until the employee reaches the age of sixty-five (65);” the 400 weeks provision appearing in T.C.A. § 50-6-24 1 and 242 (statutor y caps on an award) onl y applies to cases involv ing permanent partial disabilit y and has no app lication to a permanent total disability award. See Davis v. Reagan, ___ S.W.2d ___ (Tenn. 1997), opinion fil ed September 8, 1997 at K noxvil le. The judgment is modified to prov ide the awar d shall be pai d pursuant to T.C.A. § 50-6-20 7(4) and as modi fied the judgment i s affirmed. Costs of the appeal are taxed to defenda nt employer and insurance carrier.

___________________________________ Roger E. T hayer, Sp ecial Jud ge CONCUR:

________________________________6

E. Riley Anderson, Chief Justice

________________________________ John K. Byer

s, Senior Judg e