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Reed v. Abb Combustion Engineering9/12/2000
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 of findings of fact and conclusions of law. In this appeal, the plaintiff/appellant asserts that the trial court erred in basing plaintiff's award of permanent disability benefits on a percentage of impairment other than that supported by the medical evidence at trial. After a complete review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed.
L. Terry Lafferty, Sr. J., delivered the opinion of the court, in which William M. Barker, J., and John K. Byers, Sr. J., joined.
MEMORANDUM OPINION
The plaintiff, age fifty-four (54), testified that he went to work at the defendant's plant two weeks after graduating from high school. Except for a two (2) year enlistment in the United States Army, the plaintiff has been continuously employed by the defendant. The plaintiff testified that he is a panel straightener/joint welder. ABB Combustion Engineering, Inc., manufactures large pipe systems, called super heaters. These panels are often sixty (60) feet long and are welded together to construct panels up to twelve (12) feet wide. The panels must be welded tightly enough to pass an x-ray test and must be straightened to within an eighth (1/8) of an inch variance. On September 15, 1995, the plaintiff stated that with his hands, he was holding onto a panel that was being hoisted by a crane. The panel "whipped" and pinned the plaintiff against his work station. The plaintiff felt an onset of neck pain immediately. The next day the plaintiff reported his neck pain to the defendant. The plaintiff complained of increasing pain in his neck, numbness in the back of his left biceps and tingling in his left hand. The plaintiff had not experienced any such symptoms before this injury. ABB Combustion, Inc. referred the plaintiff to Dr. George Seiters for treatment.
The plaintiff testified that Dr. Seiters had him undergo physical therapy and prescribed anti-inflammatories and muscle relaxants. The symptoms did not improve, so Dr. Seiters ordered an MRI for the plaintiff. Afterwards, Dr. Seiters referred the plaintiff to Dr. Megison, who provided additional therapy and medicine. The plaintiff testified that he continued to work daily during these treatment sessions. Prior to his injury, the plaintiff stated that he straightened panels 50 percent of the time and did joint welding the other 50 percent. The plaintiff had taken a welding test for the J1 position which entitled the plaintiff to earn 50 cents more an hour than a panel straightener. After his injury, the plaintiff believed that he was unable to physically do joint welding because he must keep his neck in a bent position. In the course of an eight-hour day working a joint welding job, approximately five and one-half (5½) to six (6) hours a day would be spent actually welding. Prior to his injury, the plaintiff was making $14.95 an hour, which had increased by the time of trial. Also, the plaintiff stated that he would work overtime if he did not get bumped by other welders. The plaintiff stated that he still suffers from pain in the left side of his neck with some numbness to the back of his left biceps.
In cross-examination, the plaintiff testified that he could pass the test for a J1 welder, but he does not believe he can do the work. He also stated that it was his decision not to take the test for a J1 welder. The plaintiff testified that he did
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