### IN THE S UP REME COURT OF TENNESS EE AT NAS HVILLE June 7, 200 5 S es sio n

RAYMOND BANKS v . UNITED PARCEL SE RVICE, I NC.

Appeal by Per m ission from the Special Workers' Com pensation Ap peals Panel Circuit Court

for Moore County No. 709 William Lee Russell, Jud ge

No. M2003- 01875-SC-WCM -CV - F iled Augu st 18, 2005

We g ra nte d r e vie w i n thi s wo rk e rs ’ c omp e ns a tio n c a se to de te rm ine wh e the r the tr ia l c ou rt e rr e d in

awa rding benef

its to t he injured e mploy ee for the pe riod prior to the da te the employ ee notifie d the

e mpl o y e r o f h i s g r a d u a l l y

- o c c u r

ri n g inj ury . T he Spe c ia l Wor ke rs ’ C omp e ns a tio n A pp e a ls Pa ne l he ld that th e tr ia l c ou rt

c or re c tly de te rm ine d that th e employ e e ha d ti me ly no tif ie d th e e mpl oy e r o f h is inj ury , b ut r e ve rs e d th e tr ia l c ou rt ’s de te rm inatio n th a t th e inj ury wa s c omp e ns able pr ior

to the da te of no tif ic a tio n. Af

te r r e vie wi ng the re c or d a ndapp lic able a uth or ity , we a ff ir m in pa rt a ndre ve rs e in part the de cision of the Special Worker s’ Compensation Appea ls Panel. We hold that the notice was timely , that the employ ee is e ntitled to temporary total disabilit y

benef its for the period he was off wor k following his surg ery , an d t h at t h e trial c ourt corr ectly determined that the employ ee
su sta ined a

70 % v oc a tio na l di sa

bil ity , a ff ir min g the tr ia l c ou rt

on the se pa

rate g ro un ds se t f

orth here in.

Tenn. Cod e Ann. § 50-6-225(e ); F ind ings of F act and Conclusion s of L aw of the Special Workers' Com pensation Ap peals Panel Affirm ed in Par t and Rever sed in Part

E. R I L EY A NDE R S ON , J
., delivere d the opi nion of the court, in which A DOL PH O A. B I RCH , J R ., J A N I CE M. H OL DER , and W I L L I AM M. B ARKE R , J J ., joined. F RAN K F. D R OW OT A , III
, C

. J

. , n o tp ar t i ci p at i n g.

David T. Hoope r, B rentwood, Te nnessee , for the A ppellant, United Parc el Service , I nc.

Ti mothy S. Prie st, Winc he ste r, Te nn e sse e , f or the Ap pe lle e , Ray mon d B a nk s.-2- OP IN ION

Bac kgr ound

The re cord de veloped be fore the trial court contains the following fac ts.

Plaintiff R ay m o n d Ba nks (“B anks”) was e mploy ed with def endant United Par cel Ser vice (“U PS”) for thirty

y ear s. Ba nks retire d from UPS in March 2002 a fter the knee injury which is the subject of this claim re ndere d him unable to meet the phy sical re quirements of his job. Banks ha d completed hig h school and one quarte r of c olleg e and w as six ty y ear s old at the time of trial on J uly 2, 2003.

T h e m a j o r i t y o f B a n k s ’ c ar e e r , i n c l u d i n g t h e p e r i o d f r o m1 9 9 7 t o 2 0 0 1
, w a s sp e nt as a

“ pa c ka g e c ar d ri ve r, ” makin g de liv e ri e s to re sid e nc e s a nd bu sin e sse s in Mo or e Cou nty a ndL inc oln County , Tenne ssee. B anks testified that the pa ckag e ca r driver p o s i t i on require d him to make betwee n fifty

and si x ty deliverie s per da y and lift betwe en 120 and 200 pa ckag es per day , many

of wh ic h w e ig he d mo re tha n f if ty po un ds . He te sti fi e d tha t th e job re qu ir e d h im t o b e on his fe e t “ [a]ll the time” and r equire d him to climb ste ps and occa sionally kneel to r etrieve packa g es. F rom 1993 to 1997, Ba nks had worke d as a “ fee der driver,” driving eight een- whee ler truc ks. Both positions require drivers to lift seve nty pounds alone a nd 150 pounds with assistance.

Mr. B anks first noticed stiff ness and sore ness in his le ft knee in 1991. He did not think at the time that his knee pa in was work- rela ted bec ause t h er e had be en no spec ific knee incident at work. He was initially trea ted by an orthope dic surg eon, Dr . Robert Russell, with medication and cortisone shots; on Dec ember 27, 1991, howeve r, Banks underwent an arthrosc opic proc edure that

reve aled a

torn medial meniscus a nd chondroma lacia, a n ear ly arthr i t ic cha ng e in his left knee

. Ba nks continued to have pain in his knee ove r the ne x t severa l y ear s.
Orthopedic surg eon Dr. Allen F. Ander son testified by deposition that he first tre ated B anks for kne e proble ms o n S ep t em b er 3, 1993. H e next saw Ba nks on J une 11, 1998, whe n Ba nks complained that he could not bend his knee
, s t an d
, o r walk without pain. Dr. A nderson tre ated Ba nks with medication, cortisone shots, and brace s, but Ba nks’ knee condition deteriorated over the next t wo and a

half y ear s. Dr. Ande rson advised B anks in April 200 1 t h at Ba nks neede d knee repla ceme nt surg ery . Ba nks elec ted to postpone the surg ery as long as possible, be cause he knew t h a th e w o u l d n o t b e ab l e t o p e r f o r m t h e p h ys i c a l r e q u i r e m e n t s o f h i s j o b a f t e r t h e s u r g e r y. F i n a l l y, whe n th e p a in b e c a me “ e xc ru c iati n g ” to B a n k s , h e s c h e d u le d k n e e r e p la c e me n t s u r g e r y w ith Dr. Ander son for Nove mber 5, 2001.

Following surg ery , Ba nks was off work fr om November 5, 2001, until March 3, 2002, whe n Dr. Ande rson re lease d him to work. Ba nks was re stricted fr om lifting over fifty pounds as well as fr om kne e lin g , c ra wl ing , o r s itt ing fo r m or e tha n th re e ho ur s. B e c a us e he c ou ld n ot p e rf or m hi s previous jobs at UPS under the phy sical re strictions, he took retire d status as of Mar ch 4, 2002.-3-

D r

. A n d e r s o n t e s t i f

i e d t h a t t h r o u g h o u t h i s t r e a t m e n to f B a n k s u p u n t i l t h e t i m e o f s u r g e r y, Ba nks never

mentioned that his injury was work-re lated; Banks l ikewise testified that he had ne ver discussed with Dr. Ande rson whethe r the injury was work-r elated and that Dr. Ande rson had ne ver op ine d that it w a s. Al tho ug h B a nk s a ndhis wi fe te sti fi e d th a t D r. An de rs on me nti on e d th a t B a nk s’ work did not help matters, B anks testified that he did not believe he had a w orker s’ compensation claim bec ause he was not injured in a pa rticular inc ident on the job.

Way ne Scale s, Ba nks’ supervisor at UPS, testified that he had assumed Ba nks’ knee injury

was wor k-re lated, but appar ently did not share this assumption with Ba nks. He testified that a fe w
wee ks prior to his surg ery , howev er , Ba nks told him that one or two y ear s ear lier he ha d been working at home and he ard a “pop” in his knee . Scales testified tha t after this conversa tion he

a ssu me d th a t B a nk s’ inj ury wa s n ot w or

k- re la te d, bu t a gain di d n ot d isc us s h is c on c lus ion wi th Ba nks. Ba nks testified that he did not rec all having such a c onversa tion with S cale s. His knee ha d po pp e d o c c a sio nall y at w or k, bu t r a the r tha n a sso c ia tin g it w ith wo rk , B a nk s a ttribu te d it to h is

arthr iti s.

B a nk s te sti fi e d th a t prior

to h is N ov e mbe r 2 00 1 s ur g e ry , h is c o- wo rk e rs su g g e ste d th a t hi s injury might be w ork-r elated a nd advised him to consult an attorne y . Ba nks testified that he met with his attorney , TimothyPriest, on October 17, 200 1

. That same day , Priest sent a letter to Dr

. Ander son reque sting medical rec ords. Dr. Anderson di d not respond to Priest’s Octobe r 17 letter. Priest sent another le tter on May 6, 2002, stating tha t Ba nks felt h i s em ploy ment at UPS had

a g g ra va te d h is kne e inj ury . D r. An de rs on re sp on de d in writi ng on May 14 and state d th a t in his opinion Banks’ empl o y m en t wi th UPS agg ravated a pr eexisti ng condition and that B anks had sustained a 37% impairment to his left leg

. Ba nks testified that afte r Priest inf ormed h i m o f Dr. Ander son’s opinion le tter on May 16, 2002, Ba nks notified UPS that his injury was wor k-re lated on May 22, 2002.

Ba nks filed a c omplaint for worke rs’ c ompensation bene fits in the Circuit Court for Moore Cou nty o n Ju n e 3
, 2 0 0 2

. T h e c a s e w a s h e ar d o n Ju l y 2
, 2 0 0 3

. T h e t r i a l c o u r t h e l d t h a t B a nk s’ employ ment with UPS agg ravated his pree x isting arthritic condition and caused a prog ression of the condition. The court held that B anks g ave U PS t imely notice of his g radua lly -occ urring injury and

awa rded se ventee n wee ks o f temporary total disabilit y

benef its from the date tha t surg ery was perf ormed, Nove mber 5, 2001, until Ba nks was re lease d with restrictions to return to wor k on Marc h 3, 2002. The trial court a dopted Dr. A nderson’ s impairment rating and held that B anks wa s entitled to a permanent partial disabilit y awa rd based on a 70% occupational impairment to his left leg

. UPS appealed to the Spec ial Worke rs ’ C o mpensation Appea ls Panel. The Panel a ffirme d the trial court’s decision that the notice wa s timely , but reve rsed the trial court’s de cision that Ba nks

was e ntitled to seventeen w eeks of temporary

total disab i l ity

benef its because the disabilityleave pre- dated B anks’ notification of UPS. Finally , the Panel af firm ed t h e trial court’ s awa rd of perma nent partial disabilit y based on a

70% impairment to B anks’ lef t leg

.-4-

We acc epted r eview.

Ana lys is

Our stan d ar d of re view of f actua l issues in a worker s’ compensation case is de novo upon the record of the t rial court, acc ompanied by a presumption of correc tness of the trial c ourt’s fa ctual finding s, unless the preponde ranc e of the evidenc e is othe rwise. Tenn. Code Ann. § 50- 6-225(e )(2) (1999 & Supp. 2004) ; Whirlpool Corp. v. Nakhone inh, 69 S.W .3d 164, 167 (Tenn. 2002) . When the tr ia l c ou rt

ha s se e n the wi tne sse s a nd he ard the te sti mon y , e sp e c ia lly wh e re iss ue s o f c re dib ili ty

a ndthe we ig ht o f t e sti mon y are inv olv e d, the app e llate c ou rt mus t e xten d c on sid e ra

ble de fe re nc e to the trial court’s fac tual finding s. Whirlpool
, 69 S.W .3d at 167. I n revie wing documentary evidenc e such as de positions, however, we extend no defe renc e to t he trial c ourt’s finding s. I d. Our standa rd of r e v ie w o f

q u e s ti o n s o f

la w is d e n o v o w ith o u t a p r e s u mp ti o n o f

c o rr e c tn e s s

. Pe rr in v

. G ay lord Entm’t Co., 120 S .W.3d 823, 826 (Tenn. 2003).

UPS challeng es the trial court’s ruling s that Ba nks’ notice to UPS on May 22, 2002, was timely and that Ba n k s i s enti tled to temporary total disabilit y

for the time be tween his surg ery on November 5
, 2 0 0 1
, a n d M ar c h 3
, 2 0 0 2
, th e d a te h e r e tu r n e d to w o rk

. B a n k s c h a ll e n g es as ina de qu a te the tr ia l c ou rt ’s de te rm inatio n th a t he su sta ine d a 70 % p e rm a ne nt p art ia l impa ir me nt. We will consider ea ch ar g ument in turn.

Notice

UPS arg ues that Banks knew or re asonably should have known at severa l points t hat he ha d

a wor k-re lated injury

prior to Dr. A nderson’ s May 14, 2002 letter. B anks counte rs that bec ause he had a pr eexisti ng condition which was g radua lly ag g ravated by his work at UPS, he did not know and could not re asonably

have know n that he had a work-rela ted i njury until his attorney informed h i mo f D r

. A n d e r s o n ’ s M a y 1 4
, 2 0 0 2 l e t t e r

. B a n k s ar g u e s t h a tb e c a u s e h e n o t i f i e d U P S e i g h td a ys later, on Ma y

22, 2002, his notice was timely

. An employ ee w ho fails to notify his e mploy er within thirty day s that he has sustaine d a workrela ted injury

forf eits the rig ht to workers’ compensa t i o n b en efits unl ess the employ er ha s actua l notice of the injury or unl ess t he employ ee’ s failure to notify the employ er was reasonable. T enn. Code Ann. § 50-6- 201(a) (1999 & Supp. 2004). Tennesse e Cod e Annotated section 50-6- 201(a) pr ov ide s:
(a) Every injured employ ee or

such i n j ured e mploy ee’ s repr esenta tive shall, immediately upon the occ urre nce of an injury , or as soon there afte r as is reasonable and pra cticable , g ive or c ause to be g iven to the employ er w ho has no actua l notice, written notice of the inj ury , an d the e mpl oy e e sh a ll n ot b e e nti tle d to ph y sic ia n' s f e e s o r t o any compensa tion which may have a ccr

ued under the provis ions of the Workers’ Compensation L aw f rom the date of the acc ident to the-5- g iving of such notice . . . unle ss rea sonable ex cuse f or fa ilure to g ive such notice is made to the satisfac tion o f the tribunal to which the claim for c ompensation may be pre sented.

I n 2001, the leg islature amende d the statute to addre ss gr adually -occ urring injuries such as the on e su sta ine d b y

B a nk s. Ef

fe c tiv e July

1, 20 01 , th e statut e fu rthe r p ro vid e s:
(b) I n those ca ses wher e the injuries oc cur a s the re sult of g radua l or cumulative e vents or trauma, then the injure d employ ee or such injured e mploy ee’ s repr esenta tive shall provide notice to the employ er of

the injury

within thirty(30) da y s after the employ ee:
(1) Know s or re asonably

should know that such employ ee h as suffe red a work-r elated injury

that has resulted in perma nent phy sical impairment; or

(2) I s rende red una

b l e to continue to per form such employ ee’ s norm al work a ctivities as the re sult of the work-r elated injury and the e mploy ee know s or re asonably should k n o w t h at t he inj ury wa s c a us e d b y

wo rk -r e la te d a c tiv iti e s.

Tenn. Code Ann. at § 50-6-201(b) (Supp. 20 0 4 ). T h i s subsection rec og nizes that although by definition a gradually -occ urring injury occur s over time, some da te must be chosen to trig g er the notice re quirement. Thus, e mploy ees are relieve d from the notice requirement until they know or

rea sonably

s h o u ldk n o w th a t th e ir

in ju r y w a s c a u s e d b y

th e ir w o rk a n d th a t th e in

ju r y h a s e ith er impaired them pe rmane ntly or has pr evente d them from per forming normal work a ctivities. I d.

We have r ecog nized in the past that an employ ee w ho sustains a g radua lly -occ urring injury

ma y be un su re of

the c a us e of his or

he r i nju ry , a ndthe re fo re re lie ve d o f the no tic e re qu ir e me nt, un til the diag nosis is confirmed by a phy sician. See Whirlpool, 69 S.W .3d at 169-70; Pentec ost v. Anchor Wire Corp., 695 S.W .2d 183, 186 (Tenn.1985) . Additionally , we must be “ g uided by the longsta nding r

ule that the wor

kers’ compensa tion statutes are to be li bera lly construed and that doubt should be resolve d in favor of the employ ee.” L ollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 148- 49 (Tenn. 1989) (citing Knox v. Batson, 399 S.W.2d 765, 772 (Tenn. 1966), a nd Tenn. Code Ann. § 50-6-116)

.

Her e, B anks wa s both prevente d from p er fo rm ing his norma l work ac tiviti es and w as perma nently

impaired a s of the date of his surg ery , November 5, 2001; the i ssue i s when Banks kne w
or re asonably

should have known tha t his work cause d his injury

. UPS arg ues t hat Banks knew or should have known that his injury was wor k-re lated by

April 1, 2001, when D r. Ande rson advised him that he would need kne e surge ry

. Alterna tively
, UPS arg ues t hat Banks reasonably should have known that he ha d a wor k-re lated inj u ry wh en h e consul ted his attorney at the sug g estion of

cowor kers on Oc tober 17, 2001, or w hen his co n d i t i o n finally preve nted him from working on-6-

No ve mbe r 5 , 2 00 1. F ina lly , UPS ar g ue s tha t Dr. An de rs on ’s g e ne ra l sta te me nts to B a nk s th a t hi s employ ment was not helping his c ondition shoul d have a lerted him that he ha d a wor k-re lated injury long be fore Ba nks finally notified UPS on May

22, 2002.

Whether B anks knew or re asonably should have known that he had sustained a wor k-re lated injury prior to learning of

Dr. Anderson’s unequivocal st atement on May 14, 2002, is a question of fac t. The rec ord shows that Ba nks was unsure whether his injury was work-r elated until his lawy er informed him of Dr . Ander son’s opinion.

Ba nks testified, fo r ex ample, that he kne w that he ha d a pre exis ting c ondition but di d not know that it was compe nsable until Dr. Anderson’s May 14, 2002 letter. B anks wa s never advised that his condition was work-r elated; indee d, h e t est ified that he be lieved it was not work- rela ted beca use he ha d not been injure d in any specific incident. Moreove r, even though he did not believe that he ha d a

c omp e ns able inj ury , B a nk s k e pt h is su pe rv iso rs app ri se d o f h is i nju ry a ndtr e a tme nt. The e vidence does not preponde rate ag ainst the trial court’s fac tual finding that Ba nks did not

rea sonably

know his condition wa s work-r elated until May 2002, and that his notice to UPS on May 22, 2002, was timely

.

Te mpora ry To tal Di sa bil ity

UPS nex t arg ues that the trial c ourt err ed in awa rding Ba nks sevente en weeks of tempor ary tota l d is ab il it y f

o r th e ti me h e w a s in c ap a c it a te d d u e to h is k n e e s u r g e r y , b e c a u s e Ba nks did not notify UPS that he had a wor

k-re lated injury

unti l afte r he ha d rec overe d from the surg ery , been rele ased w ith restrictions, and take n retire d status. UPS arg ues that bec ause Te nnessee Code Annotated se ction 50-6-201( a) pr ovides that an employ ee “shall not be entitled to phy sician’s fe es or to any compensa tion . . . f rom the date of the a ccide nt to the giving of such notice ,” B anks may not be compensa ted for any loss prior to May 22, 2002, the date he notified UPS of his inj ury . Ba nks counter s that he wa s entitled to temporary total disabilit y benef

its e ven befor e g iving notice of the injury b e c a u s e th e e xc e p ti o n f o r g r a d u a ll y

- o c c u r

r in g in ju r ie s u n d e r

T e n n e s s e e Co d e A n n o ta ted section 50-6- 201(b) make s the provisions of section 50-6- 201(a) inapplicable.

The purpose of the noti ce re q u i re m ent i s to give the employ er “ the opportunity to make a timely investigation of the fac ts while still rea dily acc essible, and to ena

ble the employ er to provide tim ely and prope r treatment for the injure d employ ee.” J ones v. Sterling L ast Corp., 962 S.W .2d 469, 471 (Tenn. 1998) (citing Puckett v. N.A.P. Consum er E l ec

. C o rp., 725 S.W.2d 674, 675 (Tenn.1987) ). I n other wor ds, the notice provision serve s to protect the e mploy er f rom prejudice and to secure the employ er’ s rig ht to control the provision of trea tment. Where the employ ee is ig norant of the wor

k-conne cte d nature of his injury , howeve r, the e mploy er’ s interest must y ield to the

reme dial purpose of

the statute. Cf. L ong v. Mid-Tenn. Ford Truck S ales, I nc., 160 S.W.3d 504, 510 (Tenn

. 2 0 05) (a war ding c ompensation for nur sing se rvice s where injured employ ee unde rstood from phy sician that ser vices we re r equire d but did not obtain a written order ).-7-

On seve ral oc casions this Court has addre ssed questions of timi n g in gr adually -occ urring injury case s. See, e.g
., Mahoney v. NationsBa nk of Tenn., N.A., 158 S.W .3d 340, 345 (Tenn. 2005) (dete rmining which of two employ ers was liable for injury ); Bone v. Saturn Corp., 148 S.W .3d 69, 73-74 (Te nn. 2004) (de termining date at which compensation rate should be fixed); L awson v. L ear Seati n g Co r

p

. , 9 4 4 S.W .2d 340, 341-42 (Te nn. 1997) (de termining when statute of limit ations beg ins to r un). When c onstruing statutory time limits a nd require ments in suc h case s, we ha ve fa vored a

c on str uc tio n that pr e se rv e s a

wo rk e r’ s r ig ht t o b e ne fi ts andha ve e mph a size d th a t th e wo rk e r m us t be aw are that he has sustaine d a wo rk -r el at ed injury befor e time limits apply . See L awson, 944 S.W. 2da t 34 2; B ro wn Sho e Co. v. Re e d, 35 0 S.W. 2d65 , 7 0 ( Te nn . 1 96 1) . T his is c on sis te nt w ith the statutory

admonition to give the Worke r’s Compensation Ac t “an e quitable construc tion.” Tenn. Code Ann. § 50-6- 116 (1999).

For example, in determining when the statute of l imitations beg ins to run, we ha ve used the “last day worke d” rule , deeming the last day befor e the g radua lly -occ urring injury incapa citated the emp loy ee f

rom working to be the date of the injury . See, e.g ., L awson, 944 S.W.2d at 342. The pu rp os e of

the la st- da y -worked rul e “is to f ix a d a te c e rt a in w he n th e e mpl oy e e kn ow s o r s ho uld know he or

she sustained a wor

k-re lated injury

so that worker s with gr adual injuries will not lose the opportunity to bring claims . . . .” B one, 148 S.W.3d at 73 (citation omitt ed). B y the same toke n, if a n emp loy e e ha s pro vid e d the e mpl oy e r ac tua l noti c e of a g ra du a lly -o c c ur ri ng inj ury , the n th e la stday -worke d rule is inap p l i ca b l e beca use “the re is no question that the e mploy ee know s the workrela ted nature of his or her injury ; thus there is no rea son to use another date.” I d. at 73-74.

Simi larly , it would be inequitable to bar an employ ee f

rom rec eiving disabilitybenef its prior to the “date certain when the e mploy ee know s or should know h e o r s h e s u stained a w ork-r elated inj ury

. . . .” I d. a t 73 . B e c a us e we fa vo r a c on str uc tio n o f t imi ng pr ov isi on s th a t pr e se rv e s a worke r’s rig ht to benefits, we a g ree with Ba nks that because subs ec t i o n (b ) ex cuses a n employ ee from the thirty -day

notice re quirement until he “know s or re asonably should know” that he has sustained a work-r elated injury
, subsection (a) ’s barrier to r ecove ry should not apply . We theref ore hold that because B anks wa s unawa re tha t he had a work-r elated injury at the time of his surg ery on November 5, 2001, his failure to notify UPS on or before that date doe s not bar him from re ceiving te mpo ra ry tot a l di sa bil ity be ne fi ts.

Pe rc e nta

ge of Impai rment

Ba nks arg ues that the trial court’s awa rd of 70% occupa

tional disabilit y

to the left leg was inadequate in light of B anks’ a g e, wor k experience , and phy sical condition. After considering Dr. Ander son’s 37% anatom i ca l i mpairment ra ting a nd medical r estrictions, as we ll as Ba nks’ ag e, education, a nd experience
, the trial court conclude d that Ba nks was “not totally disabled b yany str e tc h o f the ima g inatio n” a nd c ou ld do se de nta ry job s. Th e e vid e nc e do e s n ot p re po nd e rate a g a ins t the tr ia l c ou rt ’s de te rm inatio n th a t B a nk s su sta ine d a 70 % i mpa ir me nt.-8- Conclusion

After revie wing the re cord a nd applicable authority
, we aff irm the decision of the trial court

on the se pa

rate g ro un ds se t fo rth abo ve

. We h oldthat app e lle e Ra y mon d B a nk s ti me ly no tif ie d U PS that he ha d s us ta ine d a

g ra du a lly -o c c ur

ri ng wo rk -r e la te d i nj ury

. We f urthe r h oldthat B a nk s is entitled to temporary

total disabilit y

benef its between the date of his surg ery and the date he r eturne d to work. F inally , we a ffirm the trial court’s awar d of 70% perma nent partial disabilit y to Ba nks’ left l e g

. C o s t s ar e t a x e d t o ap p e l l a n tU P S a n d i t s s u r e t y, f o r w h i c h e x e c u t i o n m a y i s s u e i f n e c e s s ar y.

___________________________________ E. RI LEY AN DE RSO N, JUSTI CE