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Atkins v. Wozniak Industries2/7/2001
Mailed December 19, 2000
Employee suffered a brown recluse spider bite while at work. The incident resulted in infectious eczematoid dermatitis that affected his ability to work by causing swelling, interfering with sweating, severe itching and required employee to be cautious of overheating from direct rays of sunlight, justifying an award of forty percent to the body as a whole.
Tenn. Code Ann. ยง 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed
Joe H. Walker III, Sp. J., delivered the opinion of the court, in which Janice M. Holder, J., and Joe C. Loser, Jr., 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. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law.
The employee was sixty years of age, has a GED degree, and a history of working as a laborer in an iron works factory, truck driver, mechanic, painter, welder, machine operator, and tow motor driver.
He had worked for employer a short while in a painting position. After he arrived at work on the morning that he was bit, he obtained his coveralls which were kept at the plant and were hanging in an unclean area in a dark corner. His boots were untied and the tongue was pulled out. A short while after putting on his coveralls and beginning work he felt a burning or stinging sensation on the top of his right foot. He removed his boot and saw a red spot on his foot.
Plaintiff testified that he had seen spiders in that work area on previous occasions. He had also seen spiders in the bin where gloves were kept. He had to shake out his gloves before putting them on to make certain no spiders were in them. His testimony about spiders in the plant was corroborated by an exterminator who had treated defendant's plant for brown recluse infestation in the past. Another employee also testified that he had seen spiders in different parts of the plant, but not in the paint department. Plaintiff testified he had not seen any brown recluse spiders at his home.
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. section 50-6-225(e)(2). Where the trial judge has seen and heard the witnesses, considerable deference must be accorded those circumstances on review. McCaleb v. Saturn Corp., 910 S.W.2d 412 (Tenn. 1995).
The Chancellor credited the testimony of the employee. The employee testified that the place the coveralls were kept was filthy. In his words, it was the dirtest place he ever worked. His boot was not tied when he put his overalls on, and he believed that the spider must have fallen from the coveralls into the boot. The employee testified that he did not have spiders at his house and that there was no bite of any type when he put on his sock and shoe that morning.
Employer's plant had been treated for brown recluse infestation in the past, and the exterminator set traps and caught brown recluse spiders at the plant.
The employee reported the injury immediately after it occurred. A physician testified that he treated employee for the spider bite and the injury was consistent with the history plaintiff gave him and chronology of events.
In Electro-Voice v. O'Dell, Inc., 519 S.W.2d 395 (Tenn. 1975), a plant had been treated for bee infestation approximately two years before the plaintiff was stung. Bees had been seen on the premises
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