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Richardson v. Saturn Corp.2/29/2000
HON. ROBERT L. HOLLOWAY, JUDGE
AFFIRMED
JUDGMENT
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. § 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 plaintiff, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
BIRCH, J. NOT PARTICIPATING
MEMORANDUM OPINION
REVERSED AND DISMISSED
OPINION
This workers' compensation appeal was referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
In this workers' compensation case the defendant employee appeals from the judgment of the trial court awarding workers' compensation benefits to the plaintiff based upon a finding that the plaintiff suffered thirteen and one-half (13½) percent permanent partial disability to the body as a whole. The judgment was based upon a finding that plaintiff sustained a work-related injury that caused plaintiff's pre-existing arthritic condition to become more severe. In the only issue, the defendant says that the Court erred in finding that plaintiff sustained a compensable "injury by accident" under the Tennessee Workers' Compensation Act. We find merit in this issue and reverse the judgment of the trial court.
We are mindful of certain standards by which we are bound. The standard of review of factual issues in worker's compensation cases is de novo upon the record of the trial court with a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2)(1991 and Supp. 1998); Henson v. Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993). Under this standard, we are required to conduct an in depth examination of the trial court's findings of fact and conclusions of law to determine where the preponderance of the evidence lies. See Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 282 (Tenn. 1991). In making such determination, this Court must give considerable deference to the trial judge's findings regarding the weight and credibility of any oral testimony received. All of the medical proof was taken by deposition or was documentary, so that all impressions of weight and credibility must be drawn from the contents thereof, and not from the appearance of witnesses on oral testimony at trial. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). The plaintiff in a workers' compensation suit has the burden of proving every element of the case by a preponderance of the evidence. Talley v. Virginia Ins. Reciprocal, 775 S.W.2d 587, 591 (Tenn. 1989). The plaintiff testified in open court. She stated that she had difficulty with her left shoulder beginning in 1993 which resulted in surgery to the left shoulder in June, 1994. She had no difficulty with the right shoulder until October, 1996, except for bursitis in 1991 or 1992. The bursitis pain was eliminated by treatment. After she began having trouble with her left shoulder, she began using her right shoulder and arm almost exclusively. In her work for th
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