1 

### IN THE SUPREME COURT OF TENNESS EE

AT JACKSON Novem ber 14, 200 2 Session STEVE VINSON v. UNITED PARCEL SERVICE, ET AL 

### . Appeal from the Chancery Court for Shelby County No. CH-00-2101-2 Kenny W. Armstrong, Special Chancellor

No. W2001-02180-WC-R3-CV - Filed Dec ember 30, 2002

The dispositive issue in thi s workers’ compensation action is whether the Special Chanc ellor erred in finding the appellant, S teve Vinson, to be 100% permanently partially disabled, as a

result of a motor vehicle accide nt that oc curred

in the sco

pe of his e

mploy ment. For

the rea sons s et forth herein, we conclude that no such impairment classifi cation exists in the workers’ compensation statutes and cases of this state. After conducting our own de novo revie w of the record, we hold that the prepond

erance of the evidence s upports the appell ant’s cla imthat he is 100% permanently and totally disabled and entitled to full workers’ compensation benefits pursuant to Ten nessee C ode Annotatedsection 50-6-207(4)(A)(i). Additionally , pu rsu ant to relevant workers’ compensation statutes, we hold th at the tri al court erred in allowing appellees a credit for tempora ry total disa bility benefit s that have heretofore been paid to appe llant. A cc ordingly, the judg ment of the chancery

court is affirmed, as modified herein, and the c ase remanded for enf orceme nt of the ju dgment o f this Court.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified

W IL LI AM M. B ARKER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , II I, C.J., E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.
Regina Morrison Newman, Memphis, Tennessee, for the Appellant, Steve Vinson.
Mark W. Raines, Memphis, Tennessee, for the Appellees, United Parce l Service, ET AL

.

OPINION

FACTUAL BACKGROUND2

The appella

nt, Steve Vinson, who was 33 ye ars of age at the time of trial, had been e mployed
as a tractor-trailer driver for United Par cel Service (UPS) since 1990. On November 20, 1998, Mr. Vinson was operating his tractor-trailer eastbound on I

nterstat e 40 in Madison County, Tennessee, when another

tractor -traile r pulled out in fron

t of appellant’s ve

hicle without its lights on and caused
a collision. Mr. Vinson’s vehicle was then struck from behind by a pickup truck. As a result of the two collisions , Mr. Vinso n suffer ed multip le i njuries in

cluding a spine/lu

mbar bur st fract

ure, hip socket fracture/dislocation, a

nd abdom inal trauma. Subsequently, on October 26, 2000, suit was filed for workers’ compensation benefits. Following an unsuccessful Benef it Review Conference, the case was tried without a jury on May 2, 2001 before the Honorable Kenny W. Armstrong, sitting
as Special Chancellor

. The only evidenc e presented by the appellant

was his testimony and the C-32 report completed by Dr. K

elly D. Pucek, Mr. Vinson’s orth opedic surgeon. The only evidence presented by appellee s was a two-page ex cerpt from the “Guides to Evaluation of Permanent Impairment.”

Mr. Vinson tes tified tha

t: (1) hisspinal injuries required the plac ement of

two metal

rods in his back; (2) he underwent an open surg ical reduction for his hip fracture; (3) he r etains only limited
use of one foot d ue to r esidu al nerv e damage caused b y in jury to his hip; (

4) he doe s not have

full range of motion in his injur ed hip; (5 ) he is una

ble to per form sed entary tasks due to continua

l pain in his back, hips, and lower extremities; (6) he is unable to perform any job thatrequires him to stand
or sit for more than one hou r due to di scomfor t in his lowe

r extremiti es; and, (7) he isunable to particip atein even the most basic physica l activities such as cutting grass or playing with his child. When asked if he believed he could work in any

other type of f

ull-time employ ment , Mr. Vinson responded: “N o s ir , n ot no th in g t o d o e ve ry d ay all da y long.”He further stated that he could not perform even sed entary tasks for extended p eriods of

time due to

discomfort. On cross-examination, Mr. Vinson testified that his only gainful e mployment prior

to working for

UPS was as a stock boy for a local grocery

store . On redirect, Mr. Vinson elaborated that he fe lt that his current injuries would prohibit him from working in that capacity in the future.

The appellant

next introduced the C-32 report completed by Dr. Pucek, with accompany ing medical records. Dr. Pucek relied upon the combined values chart of the AMA Phy sician’s Guide to Evaluation of

Perma nent Imp airme nt in order t o assi gn Mr. Vinson a total impairment rating. Dr. Pucek’s C-32 rep ort state d that Mr. Vinson sus ta ined a 40% impairment to the body as a whole , consisting of 20% pe

rmanent impairme

nt due tohis hip injury and an additional 20% impairme nt due to his spina

l fractu res. The C-32 rep ort indica

ted that Mr . Vin so n m ay n ot lift more than 20 pounds on a limited basis, and may not frequently lift

or carr y mo re than 1 5 pounds. T

he repor t also concluded

that Mr. Vinson main

tains a ma

ximum standin g or wa

lking ca pacity of three hours per da y, and may neve

r crawl or crouch. Mr. Vinson also suffer s f rom numerous other physica l limitations that impai

r his activities of daily living, including tying his shoes and ope

rating hand or foot controls that involve pushing or pulling.

At trial, the parties stipulated that: (1) Mr. Vinson sustained compensable injuries; (2) he was earnin g, at the time of

the acc ident, a w age e

ntitling h im to the maximum weekly benefit of $515.00;3

(3) he has not returned to work at UPS due to his injuries; (4) he had b een paid approxima

tely $45,000 in tempora

ry total disa bility benefits; and, (5) UPS had paid all medical benefits due as of the date of trial.

On May 23, 2001, the

Special Ch ancello

r enter ed a judg ment in which he concluded, among other things, that Mr. Vinson was 100% permanently partially disabled to the body as a whol e and
was entitled t

o the maximum

total benefit of 40 0 weeks, with the de fendant s recei v ing cre dit for $44,952.14 in temporary total disability benefits pr ev io us ly paid to the employee. Mr . Vinson
s ubseque ntly filed a motion to alter or amend the judgment, or in the alternative, for a ne w tria l asserting that

he was totally and pe

rmanently disabled. The

trial court denied Mr. Vinson’s motion and stated that “while the Plaintiff’s injuries are serious, there is simply insufficient medical and/or expertproof in t

h e record to support a finding that Plaintiff is permanently and totally disabled, therefore, Plaintiff’s motion is denied.”

The appellant sought review of the judgment arguing that

the evide nce pre pondera tes aga inst the trial cou

rt’s find ing and that appe

llant is en

titled to to tal and pe

rmanent disability

benefit s pursuant to Tennessee Code Annotated section 50-6-207(4)(A)(i). On June 24, 2002, we issued an order transfe rring t he case from the A

ppeals Panel to this Court for a full revi ew. Before thisCourt, the appellant argues that the evidence present ed at tria l, couple d with

the failu re of the appelle es to rebut appellant’s evidence, established that the appellant is permane nt l y a nd totally disab led. We agree. Accordingly , for the reasons set forth herein, wemodify

the judg ment of the

chance ry court.

STANDARD

OF REVIEW

Workers’ co mpensation cases are reviewed de novo upon the record of the trial court accompanied

by a presumpt ion of cor rectne ss unless the evidencepreponderates otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (1991 & Supp. 1992); see Ivey v. TransGlobal Ga s & Oil , 3 S.W.3d 441, 446 (T enn. 1 999) ( citi ng Collins v. Howmet Corp. , 970 S.W.2d 941, 943 (Tenn. 1998)). Under this standard, we are “required ‘ to weigh in more depth fact ual fi ndin gs and conclusions of trial judges in workers’ compensation cases.’” Cl eek v. Wal-Mart Stores, Inc. , 19 S.W.3d 770, 773 (Tenn. 2000) (quot ing Humphrey v. Da vid Witherspoon, Inc. , 682 S.W.2d 900, 901-02 (Tenn. 1984)). It is also well

establis hed that we are not bound by the factual findings of the trial court, but “are obliged to review the record

on our own to determine where the prepondera nce of the evidence lies.” Cleek , 19 S.W.3d at 77 3; see also Collins , 970 S.W.2d at 943. However, whenthere is no material fact in dispute, the question on appeal is one of law and the appropriate review is de novo with no presumption of correct

nes s. See Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). In thi s case, w

here the only dispute betwee n the par ties is the conclusion to be reached from the undisputed facts and evidence, the question on appe al is one of law. Thus, our review of the Special Chancellor’s conclusions is de novo with no presumption of correctness. See Ganzevoort v. Russell , 949 S.W.2d 293, 296 (Tenn. 1997).

DISCUSSION1 Ho weve r, an inju red e mplo yee wh o is, at the tim e of the in jury, ov er sixty yea rs of age , is limited to

perm anen t total disa bility ben efits for a p eriod of 26 0 we eks.

2 W e note that und er the c urren t statutory sc hem e, it app ears im pos sible to find that an injured emp loyee is 100% permanently partial ly disabled wit hout simult aneously fi nding that t he employee is 100% permanently and total ly di sabled. For ins tance, if an inj ured employee is deemed 99% partia lly disabl ed, he or s he would be ent itl ed to 396 weeks of benefits at t he applicable wage rate. However, if on the other hand an injured employee were dee med 100 % p artially disa bled , he or sh e wo uld b e by all p ractica l meas ures 1 00% perm anen tly and to tally disab led. T hus, an a ward of 40 0 we eks ap pea rs to be a statuto ry impo ssibility bec ause su ch a find ing wo uld

nece ssarily enta il a finding o f 100 % p erma nent an d tota l disab ility.
4 Under the Tennessee workers’ compensation statutes, injuries by accident arising out of

and in the scope of employ

ment are compensable. See Reeser v. Yellow F reight Systems, I nc. , 938 S.W.2d 690 (Tenn. 1997). An injured employ ee who meets the sta

tutory criteri a is entitl ed to cer

tain monetary benefits, including the pay ment of all medical expenses arising from the accident together witha recovery

for any te mporary or pe

rmanent disability resulting

from the accident. Tenn. Code Ann. § 50-6-207. Pursua

nt to the sta

tutory scheme, tempora

ry disability benefit pay ments may not exceed400 week s. Tenn. Co de Ann. § 50-6-10 2(13)(C) . With respe ct to per manent di sability benefit s, the law ma

kes a distinctio n betwee

n those inj uries tha

t are limit ed to scheduled members and th ose t hat affect the body as a whole. The maximum weekly be nefit available to an injured employee for a pe rmanent partial d isability is 400 wee

ks, howev er, reg ardlessof whether the injury is to a scheduled member or to the body as a whole. T enn. Code Ann. § 5 0-6-207(3)(B). On the other hand, an injure d employ

ee found to be per manently and totally

disabled is entitle d to sixty -six and two-thirds percent of the wages re ceived at the time of the injury un til such time that the employee is, by age, “eligible for

full benefits in the Old Age I nsurance Benefit Progra

m under the Social Security Act.” 1 Tenn. Code Ann. § 50-6-207(4)(A)(i).

The Spe cial Chancellor

de te rm in ed Mr . V in so n t o b e “ 10 0% pe rm an en tl y partiall y disabled.” The practical effect of this finding wa s to limit Mr. Vinson’s disability benefits to 400 weeks instead of awarding benefits until such time that he is eligib le for the

Old Age Insu rance B enefit Pr

ogram. A review of the workers’ compensation statutes and cases of

this state reveals that no classification of “100% pe

rmanent ly p artially

disabled” exists. I

ndeed, a s the appe

llant arg ues, and common se

nse dictates , if an individual is 100% permanently “ partially ” disa

bled, then he or she must be 100% totally disabled. We find it

impossible to distinguish between an injured employe e who is 100% pe rmanent

ly partially disabled and one who is 100% permanently a nd totally disabled. 2 It goe s withoutsaying tha

t 100% is 100%. Because th e disabili ty c lassific ation use d by

the trial court is supported neither by sta

tute nor case law, we must set it aside. We next must determine from the record before us the proper e xtent of the plaintiff’s vocational disability.

The appellees contend

that this c ourt shoul d not fin d Mr. Vin son perma nently and totally disabled because he has not met his burden of proof. Specifica lly, appellees ar

gue that because the evidence offered at trial was limited to the testimony of the appellant and the C-32 report completed by the appellant’s physician, the burden imposed upon a

plaintiff in a work

ers’ co mpensatio n case3 The record contai ns th e foll owing dia logue bet ween appell ees’ a ttor ney and Mr. Vins on, whi ch

con stitutes the en tire cro ss-exam ination:

Q: “Mr. Vinson , bef ore y ou st art ed dri vin g a truck forUPS, what

did y ou do? A: “I was in c ollege , and I w orke d at K roge r, a gro cery sto re.” Q: “Whatwer e yo u doi ng a t Kr oger ?” A: “Stoc king d airy, milk sh elves.” Q: “And th at’ s t he on ly oth er j ob yo u’ ve h ad?” A: “On ly other j ob I ’ve eve r had .”

4 In Nelson , a 67 year -old s ales a ssocia te f or Wal-Mart fel l and broke h er hip i n the cour se of he r employment. The plaintiff argued that she was permanently and totally disabled due to her age and lack of trai ning and skills.
5 was not satisfied. While the appe llees co rrectly state that the plaintiff in a workers’ compensation case be ars the burden of

proving his case, in all its parts, by a preponderance of

the evidence, see Owens-I llinois, Inc. v. Lane , 576 S.W.2d 348, 3 51 (Tenn . 1978), w e disag ree tha t the appe llant did not satisfy this burden.

The appellant’s formal education end ed after one yea r at a community colleg e. Appellant t estified that he has no specialized trade, skill, or training that would enable h im to pursue a particular fi el d o r o cc up at io n. Ad di ti on al ly, the appellant stated that besides workingas a stock boy and UPS driver, he has no work history that qualifies him

for further employ

ment. Appellan

t also address ed his curren

t phy sical limit

ations and the natu

re and e xtent of his p ast, present, and future medical treatment. Testimony of the appellant, and the C-32 report submitted by Dr. Pucek, further established that appellant

is unable to continu e workin g as a U PS driver, despite

his willingness and desire to do so.

We note that the testimony of the appellantwas comp letely unchalle nged a t trial. I n fact, cross-examination was limite d to three brief qu estions. 3 Additionally, appellees did not ref ute in any way the findings of Dr. Pucek as contained in t he C-32 report , nor did the appellees employ the services of

a vocational or medical expert to challenge a ppellant’s testimony reg arding his inability to return to

gainful employ

ment. I ndeed, th e only evidenc e prese

nted by appelle es to challenge the appellant’s case wa s a

two-page excerpt from the “Guides to Evalua tion of Permanent Impairment.” Following a careful review of the record, we find appellant’s testimony , coupled w ith t he C-32 report, sufficient to support a finding of permane nt and total disability.

We are also of the opinion, contrary to the appe ll ees’ contention, that this case is not controlledby our decision in Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625 (Tenn. 1 999). 4 In Nelson , the plaintiff introduced testimony of an occupational expert who testified that the plaintiff could perform part-time, sedentary work whic

h did not co nflict wit

h her med ical res trictions

. Id . at 629. Importantly , the defendant in Nelson introduced testimony from a me dical expert who concluded

that the plaintiff was not permanently and totally disabled. Id . While the appellant in the present case did no t introduce testimony from an oc cupational or medical expert, the appellant’s testimonyand the C- 32 repor t esta blished the seve

rity of his injur

ies and hi s appare

nt inabilit y to work in an occupation that earns an income. Unlike Nelso n , no evidence was pre sented a t trial to6

challenge Mr. Vinson’s claim of permane nt and total disability.

We have previously held that any awa rd of permanent total disability must be in compliance withthe statutory definition of total disability contained in Tennessee Code Annotated section 50-6- 207(4). Cleek , 19 S.W.3d at 774. The t est as to w hether a n employ ee is per manently and totally disabled requires us to determine if the employee is “totally incapac itate[d] . . . from working at an occupation which brings the employ ee an income . . . .” Tenn. Code Ann. § 50-6- 207(4)(B) (1999). Section (B) fur

ther pro vides in pe

rtinent pa rt that “when an injury

not other

wise specifically providedfor in this chapter, as amended, totally inc apaci tates the employee from working at an occupation that brings s u ch employ ee an inc ome, such

employ ee shall be consid

ered ‘t otally disabled,’ and for s uch disab ility compensa

tion shall b e paid

provided for

in subsection (4)(A) . . . .”

As we stated in Cleek , the dete rmination of perma nent and t otal disab ility

is to be basedon a variety of fact ors such t hat a com plete picture of a

n individua

l’s ability , or inabi lity , to retur n to gainful employ

ment is presented before the court. 19 S.W.3d at 774 (c itin g Davis v. Reagan , 951 S.W.2d 766, 767 (Tenn. 1997)). Such factors include the employee’s skills, training, education, age, job opportunities in the immediate and surrounding communities, and the availability of work suited for an individ

ual with that p articular disability. Id . (cit ing Robertson v. Loretto Casket Co. , 722 S.W.2d 380, 384 (Tenn. 1986)). Although such an assessment is often made and presented at trial by a vocati onal specialist, it iswellsettled that despite the existence or ab se nc e o f e xp er t t es ti mo ny, an employ

ee’s ow n assessm

ent of hisor her ov erall ph ysi cal cond

iti on , including the ability or inability to return to gainf ul emplo yment, i s “competent testimony that should be consider ed.” Cleek , 19 S.W.3d at 774 (quot ing McIlvain v. Russell Stover Candies, I nc. , 996 S.W.2d 179, 183 (T enn. 1999)); see also Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 629 (Te nn. 1999). I n addition to the C-32 report, the appellant testified about his pain, phy sical limit ations, a nd ability to return to gainf

ul employ ment, and in accor d with the aforementioned principles of appellate revie w and the record b efore us, w e hold that the evidence, albeit sparse, preponder ates in favor of permanent and total disability.

Fin al ly, we addr

ess wheth er the a ppellee s are en

titled to a n offset from the t

otal disab ili t y award in asum equal to the temporary total disability benefits already paid to the appellant. The trial court determined that Mr. Vins on was entitled to 400 weeks of disability pay ments with the defenda nts receiving a credit of

$44,952.14 for temporary total disability benefits previously paid. However, Tennessee Code Annotated section 50-6-102(13)(C) states in part that “‘[m]aximum total benefit ’ means the sum of all week ly b enefits t

o which a worker may

be entitled; and . . . (C) For injuries occurring on or

after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum wee kly benefit except in in st an ces of pe rmanent total disa

bility” (emphas is added). In the case of Bomley v. Mid-Amer ica Corp. , 970 S.W.2d 929 (Tenn. 1998), we addressed the eff ect of th is langu age in r

egard s to the lia

bility of the Second Injury

Fund for a portion of an award of permanent total disability . We determined that awards of permanent total disability under Tennessee Code Annotated section 50-6-207(4)(A)(i) arenot s ubject to the monetary c ap imposed by the definition contained in section 102(13) of the code. Hence, because ca ses o f7

permanent

total disa bility have be en expres sly removed from the statutory definition of the term “maximum total benefit,” and we find no add itional language within the workers’ c ompensation statutes that allows for anoffset of temporary total disability benefits, we are of the opinion that the trial court erred by

granting the appellees a c redit for tempora ry total disa bility benefit s alread

y pa id to the appellant.

CONCLUSION

We conclude that no such impairment classification of “ 100% per manently partiall y disabl ed” exist s in the statutory framew ork or case law of this state. We further hold, after conducting our own de novo review of the record, that the pr eponderance of

the evidencesupports
a finding that the appellant is permanently and totally disabled. Finally , becau se awar ds o f permanent total disability benef its are expressly excluded from the statutory def

inition of the term “maximum total benefit” in Tennessee Code Annotated section 50-6-102(13), we are of the opinion that appellees are liable for the total disability award without any credit for temporary

total disability benefit s heretofore paid to the appellant. Accordingly, we a ffirm, a s mo dified herein, the determination of the trial court and remand the case for enforc ement of the judgment of this Court.

Costs of this ap

peal sha ll be taxed a

gainst t he appellees, Un

ited Parc el Servic e and L

iberty Mutual Group.

______________________________ WIL LI AM M. BARK

ER, JUSTICE