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Shoun v. Southeast Industries3/21/2000
MODIFIED and AFFIRMED.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. ยง 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
The employer, Southeast Industries, Inc., has appealed from the action of the trial court in awarding the employee, Kellie Shoun, 50% permanent partial disability to the body as a whole.
Several issues are being raised by the appeal. The primary question is the claim by the employer that the injury was not work-related. Other issues concern whether the trial court was in error in fixing the award of disability, in awarding temporary total disability benefits and in ruling certain questions by defense counsel were leading questions. Kellie Shoun was 25 years of age at the time of the trial (which was five years after the date in question) and was a high school graduate. She had an associate's degree from Northeast State Community College in computer programming.
She was employed by Southeast as a "laminator" which she said involved heavy lifting of boxes of metal parts. On August 29, 1994, while moving boxes and placing them on a shelf, she stated she felt a strain in her low back. She said she told her supervisor, Jacqueline Dugger, that she had strained her back while lifting the boxes and Ms. Dugger told her to take some aspirin. She testified the pain continued that night and she was having muscle spasms and during the next day, she mentioned the problem to supervisor Dugger again. Later on September 1st she said as she was stepping out of the bathtub, she felt a pop in her back as she lifted her leg over the tub and the pain was so bad she could hardly walk.
On the same day of the bathtub incident, she went to see Dr. Lonnie Jackson, a chiropractor who had been treating her for a number of years for migraine headaches, knee injury, etc. Dr. Jackson treated her for a period of time and then referred her to an orthopedic doctor. The record indicates she first came under the care of Dr. Mark T. McQuain and then she saw Dr. Richard Duncan who performed surgery.
She never returned to work at Southeast after the bathtub incident but returned on September 21, 1994, in order to fill out a workers' compensation accident report but was told by a company representative that a workers' compensation claim could not be filed as she was injured at home. Thus, she had to provide for her own medical care which exhibit #7 indicates is in excess of $33,000.
Defense witness Jacqueline Dugger testified she was not told of an on- the-job injury and that she first learned of the claim on September 21st. Two other company officials also testified they were not aware of her being injured until the 21st of September.
Steven Shoun, the employee's father, testified he observed his daughter "crouched over" when she came home on August 30th and that the next day, she was leaning further forward and walked with a limp.
All of the expert medical testimony was by deposition except for the written report of Dr. Tchou.
Dr. Lonnie Jackson testified he saw her on September 1, 1994 and she related a history of having felt sharp pain in her low back while lifting boxes of metal at work and she reported hearing a pop in her back while stepping out of the bathtub; that she was bent forward and had a gait in her walk; he noticed that her right leg was shorter than the left leg which indicated an unstable sacroiliac joint; that he felt her condition was caused by the incident at work on August 29th and he treated her for abou
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