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Powers v. Johnson Controls6/11/2002
The employee or claimant, Jewel Powers, commenced this civil action on February 14, 2000 seeking workers' compensation benefits for an injury by accident arising out of and in the course of her employment with the employer, Johnson Controls, in May 1998. She averred that the injury, superimposed upon a pre-existing disability, rendered her permanently and totally disabled. She sued both the employer and the Second Injury Fund.
The employer denied any knowledge of a pre-existing disability, denied that a compensable injury occurred in May 1998 and affirmatively averred the claim was barred by the one-year statute of limitations. The Second Injury Fund also alleged the claim was barred by the statute of limitations.
After a trial on the merits, the trial court awarded, inter alia, permanent total disability benefits, which it apportioned 32.5 percent to the employer and 67.5 percent to the Fund. Because the claimant was more than sixty years old at the time of her injury, benefits are payable for 260 weeks. The Fund does not contest the trial court's finding that the claimant is permanently and totally disabled by the combined effects of the two injuries.
For injuries occurring on or after July 1, 1985, 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. ยง 50-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. Wingert v. Government of Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 980 S.W.2d 365, 367 (Tenn. 1998).
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, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The trial court's findings with respect to credibility and weight of the evidence may generally be inferred from the manner in which the court resolves conflicts in the testimony and decides the case. Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d 57, 62 (Tenn. 2001). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998).
The claimant first injured her left shoulder in1996 or 1997 and lost some time from work. Her orthopedic surgeon diagnosed and surgically repaired a torn left rotator cuff. The surgeon followed her for a period of time before releasing her with some permanent restrictions. She neither sought nor received any workers' compensation benefits for the injury, but did receive some employer funded disability benefits. Those benefits were for a non-work related injury, although the record is not clear as to whether that injury was work related. Because of the employer's policy of disallowing employees to work with medical restrictions, she could not return to her former production line job. Despite that policy, the claimant, with the help of a functional evaluation study was able to persuade her supervisor, John Brothers, to return her to work.
In May 1998, the claimant fell over a hand jack at work, landing painfully on her right shoulder. She reported the occurrence to the employer, but con
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