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Lindbloom v. Metro 8 Sheet Metal2/28/2000
AFFIRMED AS MODIFIED
This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated ยง50-6-225 (e) (3) (1998 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
The Appellant raises two issues for consideration by the Court:
1) whether the Trial Court's award of permanent partial disability payments of forty percent to the leg is supported by the facts and the evidence, and 2) whether an award for temporary partial disability benefits is justified by the evidence. After consideration of all of the evidence and the applicable law, we find that the judgment of the Trial Court should be modified with respect to both issues, and otherwise affirmed and remanded. The Appellee in his brief asks the Court to further consider whether the period of temporary partial disability awarded by the Trial Court should actually be extended. No notice of appeal of this issue, however, was filed by the Appellee, and this issue was not otherwise addressed except in response to the brief of the Appellant. We are not in a position to consider this issue. Tennessee Rules of Civil Procedure, Rule 13 (b). Our decision however, were this issue to be properly raised, would cause us to deny the further relief sought.
The facts show that the Appellee was employed by the Appellant, in marketing and outside sales in the Chattanooga, Tennessee area. The Appellee was the only Tennessee employee of the Appellant which conducted its primary operations in North Carolina. The Appellee maintained an office in her home, and also used her car not only in traveling to see prospective clients, but also in transporting clients to meals or snacks during sales calls. On or about April 10, 1997, the Appellee testified that she worked in her office during the morning hours, then prepared to go to the business of a client, Dupont, for the purpose of securing written promotional copy. Although she had no specific appointment, she intended to arrive at the client's place of business at approximately 2:30 p.m., and felt that she might be called upon to utilize her car to transport the clients to a nearby restaurant for coffee. The Appellee testified that she first began driving her vehicle in the direction of the business of the client, stopping en route at a liquor store to obtain a bottle of wine for her own personal use during the upcoming weekend, then went to a nearby carwash, in order to clean her car, but found either that the carwash was closed or that service could not be obtained promptly, and then returned to the property of the apartment complex where she resided. Instead of going to her apartment, the Appellee went to the trash receptacle, or dumpster on the property, for the purpose of cleaning the inside of her vehicle. As she stepped away from the dumpster, her foot slipped on a piece of glass. She fell, and severely fractured her ankle, requiring surgery. The Appellee remained off duty for a period of time, was released to return to work, and subsequently was incapacitated some few months later for a period of two weeks when further surgery was performed to remove a plate and screws which had been inserted in her ankle to aid in the healing process. Her doctor testified that the Appellee has full range of motion, and is able to do all activities, with pain being the only limiting factor. He specifically stated that the Appellee can walk for a long distance so long as it does not hurt her and that if she were able to run before the accident she should be able to run after the accident. Her only limitation further was as to "full sq
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