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Moton v. Kellogg USA Inc.3/11/1999
AFFIRMED
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.
Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and Conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988).
The trial court found that the plaintiff did not make a meaningful return to work and therefore that the statutory cap of 2.5 times the anatomical impairment rating did not apply. The trial court awarded the plaintiff benefits based on 3.5 times Dr. Weems' rating of fifteen percent for a total permanent partial disability award of 52.5 percent to the body as a whole.
The defendant raises the following issues:
1. Whether the trial court erred in finding that Plaintiff did not make ameaningful return to work?
2. Whether the trial court erred in relying on the deposition testimony ofDr. Thomas D. Weems rather than the deposition testimony of Dr. James T. Galyon?
3. Whether the trial court erred in awarding Plaintiff a permanent partialdisability rating for vocational disability purposes of 52.5%?
We affirm the judgment of the trial court.
BACKGROUND
The plaintiff, age 37 at the time of trial, is a high school graduate. She took over five years of college classes in English, Biology, and Chemistry from various institutions, but she holds no degrees. She is certified as a pharmacy technician and has worked in that field at a rate of $9.50 per hour. She also has work experience as a chemical analyst.
In January 1990, the plaintiff went to work for the defendant as an FMC operator in the manufacturing process of frozen waffles. She earned $11.65 per hour. On February 7, 1995, the plaintiff fell at work and hurt her neck, shoulder, and back. Following conservative treatment by Dr. James T. Galyon, she returned to work after being off work for one week. Her pain became worse however, so she returned to Dr. Galyon and eventually saw Dr. Thomas D. Weems.
Following surgery by Dr. Galyon and Dr. Weems, the plaintiff returned to work for the defendant on August 2, 1995. Although the plaintiff had some temporary work restrictions, the permanent work restrictions issued by Dr. Galyon included no lifting of more than 20 pounds, no standing of more than three hours, and no overhead work. Upon returning to work, the plaintiff worked as a relief operator, a job that required her to stand ready to relieve workers in 13 different positions, including the FMC operator and case packer positions. The plaintiff testified that the FMC operator and case packer jobs were too strenuous for her to perform but that she could perform the picker, stacker, and inspector jobs because they were within her work restrictions.
Sometime in October 1995, the plaintiff reinjured herself while stacking boxes overhead. She testified that she complained to her supervisor that it was painful for her to stack boxes overhead but that her supervisor said that there was no other position available. The plaintiff saw Dr. Gaylon for this
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