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Simpson v. Livingston Limestone Co.3/25/1999
AFFIRMED
JUDGMENT ORDER
This case is before the Court upon defendants' motion for review pursuant to Tenn. Code Ann. ยง 50-6-225(e)(5)(B), 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 motion for review is not well-taken and should be denied; 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 defendant-appellant and surety, for which execution may issue if necessary.
Barker, J., not participating
IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS' COMPENSATION APPEALS JUDGES AT NASHVILLE (December 11, 1998 Session)
JAMES R. SIMPSON, Plaintiff-Appellee, v. LIVINGSTON LIMESTONE CO., INC., Defendant-Appellant.
OVERTON CIRCUIT Hon. John Maddux, Judge.
No.01S01-9712-CV-00282
MEMORANDUM OPINION
AFFIRMED
Loser, Judge
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. section 50-6-225(e)(3) for hearing and reporting of findings of fact and Conclusions of law. The employer, Livingston Limestone Co., Inc., insists the trial Judge erred in finding the employee's hernia to be compensable and that the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed.
The employee or claimant, Simpson, initiated this civil action to recover disability benefits because of a hernia. After a trial of all the issues, the trial Judge found the hernia to be compensable under the Workers' Compensation Act and awarded, inter alia, permanent partial disability benefits based on forty-seven percent to the body as a whole. We have reviewed the case 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. section 50-6-225(e)(2).
The claimant is 34 years old with an eighth grade education, who worked for the employer as a truck driver. On July 19, 1995, he sought medical treatment from Dr. Leonard Carroll for a left inguinal hernia. The doctor surgically repaired the hernia and released the claimant to return to work on August 30, 1995. The repair was complete. The claimant returned to work and made no claim for workers' compensation benefits.
On October 16, 1996, while lifting a heavy object in the course of his employment, the claimant felt a sharp pain in his left side and testicles, causing him to feel sick. He informed his supervisor and the next day visited Dr. Carroll. The claimant testified that the second hernia appeared suddenly and immediately following the lifting episode, was accompanied by pain and did not exist, to his knowledge, before the accident. The second hernia was also repaired by Dr. Carroll, who thereafter restricted the claimant from lifting over 10 to 15 pounds, stooping, crawling, climbing, jogging, running, operating any heavy equipment requiring the use of a clutch, moving both feet while working with the hands or engaging in vigorous exercise.
Dr. Carroll testified that the second hernia was a new one. Dr. Hargreaves, after reviewing medical reco
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