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Zelek v. Flagstar System7/28/2000
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by appellants, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
Mailed - June 27, 2000
The employer contends the trial judge erred by accrediting the expert medical testimony of a non-approved physician chosen by the employee, or her attorney, and that the award of permanent partial disability benefits is excessive.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed.
loser, sp. j., delivered the opinion of the court, in which Birch, j., and kurtz, sp. j., joined.
MEMORANDUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. As discussed below, the panel has concluded the judgment should be affirmed.
On August 8, 1993, the employee or claimant, Mary Zelek, was employed as breakfast manager for a Hardee's restaurant in Lebanon, owned by the employer, Flagstar System, Inc. She arrived at work that day at approximately 3:30 a.m. As she attempted to open the safe, she slipped on a wet floor and fell backwards, injuring her back. The resulting pain was such that she was taken to the nearby emergency room and referred to Dr. John McGinnis, who treated her.
She continued trying to work but her back problems worsened. She ultimately quit because, as she put it, "they were giving me a hard time." The employer transferred her to another store, reduced her working hours by five to ten per week and changed her duties from those of a manager to those of a front line cashier. They did not reduce her hourly wage.
Dr. McInnis did not testify, but the trial court had before it the depositional testimony of two physicians who examined and evaluated the claimant. Dr. Larry Laughlin, chosen by the employer, saw her once and noted that "she had a fracture of the distal sacrum and Dr. McInnis assigned a three percent impairment," which he did not dispute. Dr. S. M. Smith, chosen by the employee, saw her on three or four occasions and estimated her permanent impairment at five percent to the whole body from the fracture and an additional one percent from a low back strain, for a total of six percent.
From the above summarized evidence, the trial judge found that the claimant would retain a permanent partial disability of thirty-six percent, or six times Dr. Smith's impairment rating, to the body as a whole, for which he awarded benefits. Appellate review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6- 225(e)(2). This standard requires the panel to examine in depth a trial court's factual findings and conclusions. The panel is not bound by a trial court's factual findings b
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