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Barbra v. Clarendon National Insurance Company9/19/2000
Mailed August 16, 2000
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, Clarendon National Insurance Company, is the workers' compensation insurance carrier for United Marine Corporation (hereafter "the employer"). The issue is whether an award of 62-1/2 percent partial disability to the body as a whole is excessive in light of the medical and vocational testimony. We affirm the judgment of the trial court.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed.
Peoples, Sp. J., delivered the opinion of the court, in which Barker, J., and Terry L. Lafferty, Sr. J., joined.
OPINION
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 finding, 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 courts in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988).
In October 1997, James C. Barbra was employed by United Marine Corporation as a gel coater and taper in the boat building process. On October 20, 1997, he injured his lower back. He was treated by Dr. Mark Thomas, an orthopedic surgeon, who performed a laminectomy and discectomy on January 27, 1998. Dr. Thomas performed a second surgery on March 19, 1998 to explore the nerve root and related residual problems from the first surgery. On July 21, 1998, Dr. Thomas placed Mr. Barbra at maximum medical improvement, released him to return to work and assigned a permanent impairment rating of 15 percent to the body as a whole. On July 21, 1998, Mr. Barbra returned to work and two weeks later he was promoted from gel coat taper to Team Leader and given a ten percent pay increase. In December 1998, he was promoted to Senior Team Leader and given a five percent pay increase. On June 1, 1998, Mr. Barbara was seen for evaluation by Dr. William Kennedy who assigned an impairment rating of 27 percent to the body as a whole.
The employer argues:
(1) That the findings and testimony of Dr. Mark Thomas should be given more weight because he was the treating physician.
(2) That the conclusions of Dr. Julian Nadolsky, vocational expert, are not supported by the facts.
(3) That Mr. Barbra has returned to work and received two promotions and two pay increases and an award of two and one-half times the medical impairment is excessive.
(4) That the award should be reduced because Mr. Barbra would have received less of an award if he had been found to be permanently and totally disabled because
(a) T.C.A. § 50-6-207(4)(a)(i) limits the amount to 260 weeks for injuries after age 60 and 62.5 percent of 260 weeks would be 162.5 weeks; and
(b) if Mr. Barbra had been awarded total disability, the employer would be entitled to offset that amount by the "amount of any old age insurance benefit payments attributable to employer contributions which the employee may receive under the Social Security . . ." T.C.A. § 50-7-307(4)(a)(i).
Mr. Barbra is age 64. He quit school in the eighth grade to work for his father digging wells. He has worked as an attendant
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