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IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 14, 2002 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 December 30, 2002

The dispositive issue in this workers’ compensation action is whether the Special Chancellor erred

in finding the appellant, Steve Vinson, to be 100% permanently partially disabled, as a result of a

motor vehicle accident that occurred in the scope of his employment. For the reasons set forth

herein, we conclude that no such impairment classification exists in the workers’ compensation

statutes and cases of this state. After conducting our own de novo review of the record, we hold that

the preponderance of the evidence supports the appellant’s claim that he is 100% permanently and

totally disabled and entitled to full workers’ compensation benefits pursuant to Tennessee Code

Annotated section 50-6-207(4)(A)(i). Additionally, pursuant to relevant workers’ compensation

statutes, we hold that the trial court erred in allowing appellees a credit for temporary total disability

benefits that have heretofore been paid to appellant. Accordingly, the judgment of the chancery court

is affirmed, as modified herein, and the case remanded for enforcement of the judgment of this

Court. 

 

Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court

Affirmed as Modified

WILLIAM M.BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA,III, C.J.,

E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

Regina Morrison Newman, Memphis, Tennessee, for the Appellant, Steve Vinson.

Mark W. Raines, Memphis, Tennessee, for the Appellees, United Parcel Service, ET AL.

OPINION

FACTUAL BACKGROUND
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The appellant, Steve Vinson, who was 33 years of age at the time of trial, had been employed

as a tractor-trailer driver for United Parcel Service (UPS) since 1990. On November 20, 1998, Mr.

Vinson was operating his tractor-trailer eastbound on Interstate 40 in Madison County, Tennessee,

when another tractor-trailer pulled out in front of appellant’s vehicle 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. Vinson suffered multiple injuries including a spine/lumbar burst fracture, hip

socket fracture/dislocation, and abdominal trauma. Subsequently, on October 26, 2000, suit was

filed for workers’ compensation benefits. Following an unsuccessful Benefit 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 evidence presented by the appellant was his testimony and the C-32

report completed by Dr. Kelly D. Pucek, Mr. Vinson’s orthopedic surgeon. The only evidence

presented by appellees was a two-page excerpt from the “Guides to Evaluation of Permanent

Impairment.” 

Mr. Vinson testified that: (1) his spinal injuries required the placement of two metal rods in

his back; (2) he underwent an open surgical reduction for his hip fracture; (3) he retains only limited

use of one foot due to residual nerve damage caused by injury to his hip; (4) he does not have full

range of motion in his injured hip; (5) he is unable to perform sedentary tasks due to continual pain

in his back, hips, and lower extremities; (6) he is unable to perform any job that requires him to stand

or sit for more than one hour due to discomfort in his lower extremities; and, (7) he is unable to

participate in even the most basic physical activities such as cutting grass or playing with his child.

When asked if he believed he could work in any other type of full-time employment, Mr. Vinson

responded: “No sir, not nothing to do every day all day long.” He further stated that he could not

perform even sedentary tasks for extended periods of time due to discomfort. On cross-examination,

Mr. Vinson testified that his only gainful employment prior to working for UPS was as a stock boy

for a local grocery store. On redirect, Mr. Vinson elaborated that he felt 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 accompanying

medical records. Dr. Pucek relied upon the combined values chart of the AMA Physician’s Guide

to Evaluation of Permanent Impairment in order to assign Mr. Vinson a total impairment rating. Dr.

Pucek’s C-32 report stated that Mr. Vinson sustained a 40% impairment to the body as a whole,

consisting of 20% permanent impairment due to his hip injury and an additional 20% impairment

due to his spinal fractures. The C-32 report indicated that Mr. Vinson may not lift more than 20

pounds on a limited basis, and may not frequently lift or carry more than 15 pounds. The report also

concluded that Mr. Vinson maintains a maximum standing or walking capacity of three hours per

day, and may never crawl or crouch. Mr. Vinson also suffers from numerous other physical

limitations that impair his activities of daily living, including tying his shoes and operating hand or

foot controls that involve pushing or pulling. 

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

earning, at the time of the accident, a wage entitling him to the maximum weekly benefit of $515.00;
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(3) he has not returned to work at UPS due to his injuries; (4) he had been paid approximately

$45,000 in temporary total disability benefits; and, (5) UPS had paid all medical benefits due as of

the date of trial.

On May 23, 2001, the Special Chancellor entered a judgment in which he concluded, among

other things, that Mr. Vinson was 100% permanently partially disabled to the body as a whole and

was entitled to the maximum total benefit of 400 weeks, with the defendants receiving credit for

$44,952.14 in temporary total disability benefits previously paid to the employee. Mr. Vinson

subsequently filed a motion to alter or amend the judgment, or in the alternative, for a new trial

asserting that he was totally and permanently 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

expert proof in the 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 evidence preponderates against

the trial court’s finding and that appellant is entitled to total and permanent disability benefits

pursuant to Tennessee Code Annotated section 50-6-207(4)(A)(i). On June 24, 2002, we issued an

order transferring the case from the Appeals Panel to this Court for a full review. Before this Court,

the appellant argues that the evidence presented at trial, coupled with the failure of the appellees to

rebut appellant’s evidence, established that the appellant is permanently and totally disabled. We

agree. Accordingly, for the reasons set forth herein, we modify the judgment of the chancery court.

 

STANDARD OF REVIEW

Workers’ compensation cases are reviewed de novo upon the record of the trial court

accompanied by a presumption of correctness unless the evidence preponderates otherwise. Tenn.

Code Ann. § 50-6-225(e)(2) (1991 & Supp. 1992); see Ivey v. Trans Global Gas & Oil, 3 S.W.3d

441, 446 (Tenn. 1999) (citing Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998)). Under

this standard, we are “required ‘to weigh in more depth factual findings and conclusions of trial

judges in workers’ compensation cases.’”Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 773 (Tenn.

2000) (quoting Humphrey v. David Witherspoon, Inc., 682 S.W.2d 900, 901-02 (Tenn. 1984)). It

is also well established 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 preponderance of the evidence lies.”

Cleek, 19 S.W.3d at 773; see also Collins, 970 S.W.2d at 943. However, when there 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 correctness. See Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.

1993). In this case, where the only dispute between the parties is the conclusion to be reached from

the undisputed facts and evidence, the question on appeal 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).

DISCUSSION
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 However, an injured employee who is, at the time of the injury, over sixty years of age, is limited to

permanent total disability benefits for a period of 260 weeks. 

2

 We note that under the current statutory scheme, it appears impossible to find that an injured employee is

100% permanently partially disabled without simultaneously finding that the employee is 100% permanently and

totally disabled. For instance, if an injured employee is deemed 99% partially disabled, he or she would be entitled

to 396 weeks of benefits at the applicable wage rate. However, if on the other hand an injured employee were

deemed 100% partially disabled, he or she would be by all practical measures 100% permanently and totally

disabled. Thus, an award of 400 weeks appears to be a statutory impossibility because such a finding would

necessarily entail a finding of 100% permanent and total disability. 

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Under the Tennessee workers’ compensation statutes, injuries by accident arising out of and

in the scope of employment are compensable. See Reeser v. Yellow Freight Systems, Inc., 938

S.W.2d 690 (Tenn. 1997). An injured employee who meets the statutory criteria is entitled to certain

monetary benefits, including the payment of all medical expenses arising from the accident together

with a recovery for any temporary or permanent disability resulting from the accident. Tenn. Code

Ann. § 50-6-207. Pursuant to the statutory scheme, temporary disability benefit payments may not

exceed 400 weeks. Tenn. Code Ann. § 50-6-102(13)(C). With respect to permanent disability

benefits, the law makes a distinction between those injuries that are limited to scheduled members

and those that affect the body as a whole. The maximum weekly benefit available to an injured

employee for a permanent partial disability is 400 weeks, however, regardless of whether the injury

is to a scheduled member or to the body as a whole. Tenn. Code Ann. § 50-6-207(3)(B). On the

other hand, an injured employee found to be permanently and totally disabled is entitled to sixty-six

and two-thirds percent of the wages received at the time of the injury until such time that the

employee is, by age, “eligible for full benefits in the Old Age Insurance Benefit Program under the

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

 

The SpecialChancellor determined Mr. Vinson to be “100% permanently partially disabled.”

The practical effect of this finding was to limit Mr. Vinson’s disability benefits to 400 weeks instead

of awarding benefits until such time that he is eligible for the Old Age Insurance Benefit Program.

A review of the workers’ compensation statutes and cases of this state reveals that no classification

of “100% permanently partially disabled” exists. Indeed, as the appellant argues, and common sense

dictates, if an individual is 100% permanently “partially” disabled, then he or she must be 100%

totally disabled. We find it impossible to distinguish between an injured employee who is 100%

permanently partially disabled and one who is 100% permanently and totally disabled.2

 It goes

without saying that 100% is 100%. Because the disability classification used by the trial court is

supported neither by statute nor case law, we must set it aside. We next must determine from the

record before us the proper extent of the plaintiff’s vocational disability. 

The appellees contend that this court should not find Mr. Vinson permanently and totally

disabled because he has not met his burden of proof. Specifically, appellees argue 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 workers’ compensation case
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 The record contains the following dialogue between appellees’ attorney and Mr. Vinson, which

constitutes the entire cross-examination: 

Q: “Mr. Vinson, before you started driving a truck for UPS, what did you do?

A: “I was in college, and I worked at Kroger, a grocery store.”

Q: “What were you doing at Kroger?”

A: “Stocking dairy, milk shelves.”

Q: “And that’s the only other job you’ve had?”

A: “Only other job I’ve ever had.”

4

 In Nelson, a 67 year-old sales associate for Wal-Mart fell and broke her hip in the course of her

employment. The plaintiff argued that she was permanently and totally disabled due to her age and lack of training

and skills. 

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was not satisfied. While the appellees correctly state that the plaintiff in a workers’ compensation

case bears the burden of proving his case, in all its parts, by a preponderance of the evidence, see

Owens-Illinois, Inc. v. Lane, 576 S.W.2d 348, 351 (Tenn. 1978), we disagree that the appellant did

not satisfy this burden. 

The appellant’s formal education ended after one year at a community college. Appellant

testified that he has no specialized trade, skill, or training that would enable him to pursue a

particular field or occupation. Additionally, the appellant stated that besides working as a stock boy

and UPS driver, he has no work history that qualifies him for further employment. Appellant also

addressed his current physical limitations and the nature and extent of his past, 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 continue working as a UPS driver, despite his willingness and

desire to do so. 

We note that the testimony of the appellant was completely unchallenged at trial. In fact,

cross-examination was limited to three brief questions.3 Additionally, appellees did not refute in any

way the findings of Dr. Pucek as contained in the C-32 report, nor did the appellees employ the

services of a vocational or medical expert to challenge appellant’s testimony regarding his inability

to return to gainful employment. Indeed, the only evidence presented by appellees to challenge the

appellant’s case was a two-page excerpt from the “Guides to Evaluation of Permanent Impairment.”

Following a careful review of the record, we find appellant’s testimony, coupled with the C-32

report, sufficient to support a finding of permanent and total disability. 

We are also of the opinion, contrary to the appellees’ contention, that this case is not

controlled by our decision in Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625 (Tenn. 1999).4

 In

Nelson, the plaintiff introduced testimony of an occupational expert who testified that the plaintiff

could perform part-time, sedentary work which did not conflict with her medical restrictions. Id. at

629. Importantly, the defendant in Nelson introduced testimony from a medical expert who

concluded that the plaintiff was not permanently and totally disabled. Id. While the appellant in the

present case did not introduce testimony from an occupational or medical expert, the appellant’s

testimony and the C-32 report established the severity of his injuries and his apparent inability to

work in an occupation that earns an income. Unlike Nelson, no evidence was presented at trial to
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challenge Mr. Vinson’s claim of permanent and total disability. 

We have previously held that any award of permanent total disability must be in compliance

with the statutory definition of total disability contained in Tennessee Code Annotated section 50-6-

207(4). Cleek, 19 S.W.3d at 774. The test as to whether an employee is permanently and totally

disabled requires us to determine if the employee is “totally incapacitate[d] . . . from working at an

occupation which brings the employee an income . . . .” Tenn. Code Ann. § 50-6-207(4)(B) (1999).

Section (B) further provides in pertinent part that “when an injury not otherwise specifically

provided for in this chapter, as amended, totally incapacitates the employee from working at an

occupation that brings such employee an income, such employee shall be considered ‘totally

disabled,’ and for such disability compensation shall be paid provided for in subsection (4)(A) . . .

.”

As we stated in Cleek, the determination of permanent and total disability is to be based on

a variety of factors such that a complete picture of an individual’s ability, or inability, to return to

gainful employment is presented before the court. 19 S.W.3d at 774 (citing 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 individual with that particular disability. Id. (citing 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 vocational specialist, it is well settled that despite the existence or absence of expert testimony,

an employee’s own assessment of his or her overall physical condition, including the ability or

inability to return to gainful employment, is “competent testimony that should be considered.”

Cleek, 19 S.W.3d at 774 (quoting McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183

(Tenn. 1999)); see also Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 629 (Tenn. 1999). In

addition to the C-32 report, the appellant testified about his pain, physical limitations, and ability to

return to gainful employment, and in accord with the aforementioned principles of appellate review

and the record before us, we hold that the evidence, albeit sparse, preponderates in favor of

permanent and total disability. 

Finally, we address whether the appellees are entitled to an offset from the total disability

award in a sum equal to the temporary total disability benefits already paid to the appellant. The trial

court determined that Mr. Vinson was entitled to 400 weeks of disability payments with the

defendants 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 weekly benefits to 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 weekly benefit except in instances of permanent total disability”

(emphasis added). In the case of Bomley v. Mid-America Corp., 970 S.W.2d 929 (Tenn. 1998), we

addressed the effect of this language in regards to the liability 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) are not subject to the monetary cap

imposed by the definition contained in section 102(13) of the code. Hence, because cases of
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permanent total disability have been expressly removed from the statutory definition of the term

“maximum total benefit,” and we find no additional language within the workers’ compensation

statutes that allows for an offset of temporary total disability benefits, we are of the opinion that the

trial court erred by granting the appellees a credit for temporary total disability benefits already paid

to the appellant. 

CONCLUSION

We conclude that no such impairment classification of “100% permanently partially

disabled” exists in the statutory framework or case law of this state. We further hold, after

conducting our own de novo review of the record, that the preponderance of the evidence supports

a finding that the appellant is permanently and totally disabled. Finally, because awards of

permanent total disability benefits are expressly excluded from the statutory definition 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

benefits heretofore paid to the appellant. Accordingly, we affirm, as modified herein, the

determination of the trial court and remand the case for enforcement of the judgment of this Court.

Costs of this appeal shall be taxed against the appellees, United Parcel Service and Liberty

Mutual Group.

______________________________

WILLIAM M. BARKER, JUSTICE