Henson v. City of Lawrenceburg

• Decision Date: 29 March 1993
• Citation: 851 S.W.2d 809
• Parties: James D. HENSON, Plaintiff-Appellee, v. CITY OF LAWRENCEBURG, Ivan Johnston, Mayor, and W.O. Smith, Superintendent, TML Risk Management Pool Claims, Defendants-Appellants, and Sue Ann Head, Director of the Division of Workers' Compensation of the State of Tennessee, Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 809

851 S.W.2d 809

James D. HENSON, Plaintiff-Appellee, v. CITY OF LAWRENCEBURG, Ivan Johnston, Mayor, and W.O. Smith Superintendent, TML Risk Management Pool Claims Defendants-Appellants and Sue Ann Head, Director of the Division of Workers' Compensation of the State of Tennessee, Defendant-Appellee.

Supreme Court of Tennessee at Nashville.

March 29, 1993.

James A. Hopper, Hopper & Plunk, P.C., Savannah, for appellants.

Jerry W. Wallace, Parsons, for appellee, James Henson.

Charles W. Burson, Atty. Gen. & Reporter, Dianne Stamey Dycus, Asst. Atty. Gen., Nashville, for appellee, Second Injury Fund.

OPINION

ANDERSON, Justice.

In this workers' compensation action, the trial court awarded the worker 100 percent total disability benefits for a work-related back injury. The responsibility for the judgment was divided on the basis of 45 percent to the employer and 55 percent to the State Second Injury Fund, and it was commuted to a partial lump-sum. On appeal, the employer contends that its apportioned share was excessive. The Second Injury Fund argues that assessing any part of the award against it was error, since the evidence preponderates against a finding of total disability. Even if the disability was total, the Fund contends the award does not exceed 100 percent because prior scheduled-member injury awards are not "to the body as a whole" and may not be added to the present award. Both parties argue that the trial court erred in granting the partial lump-sum award. Our review of the record demonstrates that the evidence does preponderate against the trial court's finding of 100 percent permanent and total disability, and in favor of an award of 75 percent permanent partial disability. We also conclude that the legislative intent and purpose of the Second Injury Fund Statute ¹--the employment of the handicapped--is furthered by equating prior scheduled-member awards to a percentage of the body as a whole. Because the prior scheduled-member workers' compensation awards equate to 28 percent of the body as a whole, and the total, when added to the present permanent partial award, exceeds 100 percent, the employer is responsible for 72 percent of the award and the Second Injury Fund is responsible for 3 percent of the award. We have also determined that the trial court erred in granting the partial lump-sum award.

FACTUAL BACKGROUND

On August 10, 1989, the plaintiff, James Henson, while employed by the defendant, City of Lawrenceburg, injured his back sweeping and shoveling debris from a city street. The injury was originally diagnosed as a lumbar sprain. Because the pain and discomfort continued, Henson, in March of 1990, consulted Dr. Bennett Blumenkopf, a neurological surgeon at Vanderbilt, who concluded that Henson was suffering from a herniated thoracic disc. The disc was surgically repaired as a result.

Because of a dispute as to the disability and the parties' responsibilities, this action was filed. Dr. Blumenkopf testified, by deposition, that Henson had continued to complain of pain following the surgery, but had no objective deficits, and, therefore, was assigned a 5 percent medical impairment rating. He was released to return to work with a 25-pound lifting restriction. When Henson continued to complain of pain, Dr. Blumenkopf referred him to the Vanderbilt Ability Assessment Center. The Center performed an evaluation and assessed a medical impairment rating of 11 percent and a 55 percent vocational disability. Henson was limited to light work activities which do not involve crouching, kneeling, squatting, climbing or lifting over 20 pounds. The Center's report provided examples of jobs which would not involve the restricted activities, including security guard, assembler, exterminator, order caller, auction assistant, and outside deliverer. Dr. Blumenkopf stated that he did not disagree with the higher rating because it included orthopedic impairment in addition to neurologic impairment.

The only issue disputed at trial was the existence and extent of permanent disability. Henson, 52 years old, testified that he did not complete high school but obtained his GED in 1960, and had worked as a truck driver, heavy equipment operator, and asphalt plant operator most of his adult life. He stated that he had suffered from a variety of illnesses that were not work-related, but presented no expert medical proof of any permanent disability as a result of those illnesses. He further testified that before the back injury in 1989, he was able to hold down a job, but since that time he has not returned to work, and can no longer use a lawnmower, weedeater or garden tiller. On cross-examination, he admitted that he is able to drive his pick-up truck.

The parties stipulated that Henson had been involved in two prior workers' compensation claims that resulted in settlement awards of 20 percent disability to the left knee and 50 percent disability to the left leg. The parties also stipulated that the two prior injuries to the left lower extremity "related" to 28 percent to the body as a whole under the AMA guidelines.

Based on the foregoing evidence, the trial judge found Henson to be 100 percent totally and permanently disabled. The City of Lawrenceburg was ordered to pay 45 percent of the award, and the Second Injury Fund of the Department of Labor was ordered to pay 55 percent.

On plaintiff's motion to commute the award to lump sum, Henson and his wife testified that they were seeking the lump-sum amount to pay in full all of their outstanding debts, including first and second home mortgages, two automobile loans, and two loans taken out to meet daily living expenses. In addition to the debts, the Hensons testified that they intended to use the money to pay for repair work to their home, which was estimated to be $1,860.00. Both testified that they had no problems managing money. On cross-examination, Mrs. Henson stated that the temporary total benefits, together with the permanent disability benefits accrued at the time of trial ($24,310.00), would be sufficient to allow the couple to catch up on the delinquent loan payments and pay for the needed repairs to their home. The record shows the total of all loans for living expenses, including the second mortgage and accrued medical bills, was approximately $10,500.00. The trial court granted a partial lump-sum award of $46,000.00 ².

PERMANENT DISABILITY AWARD

Our review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (1991 & Supp.1992); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn.1989). "This standard differs from that previously provided and requires this Court to weigh in more depth factual findings and conclusions of trial judges in workers' compensation cases." Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn.1987).

The Second Injury Fund contends that the evidence preponderates against the trial court's finding that Henson is 100 percent totally and permanently disabled. The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and expert testimony. Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 (Tenn.1990). "The assessment of permanent ... disability is based upon numerous factors, including the employee's skills and training, education, age, local job opportunities, and his capacity to work at the kinds of employment available in his disabled condition." Robertson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn.1986). A medical expert's rating of anatomical disability is also one of the relevant factors, but the vocational disability is not restricted to the precise estimate of anatomical disability made by a medical witness. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn.1988). Further, this Court is able to make its own independent assessment of the medical proof to determine where the preponderance of the evidence lies when the medical testimony is presented by deposition as it was in this case. Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn.1989).

The record demonstrates that Henson is a 52 year-old man who has a GED diploma and substantial experience as a truck driver, heavy equipment operator, and an asphalt plant operator. The lay testimony from Henson and his wife indicates that although he can drive a truck, he is now unable to return to his former job, or perform yard work he had engaged in before the injury. Both the lay and expert medical testimony indicate that Henson is still capable of performing light work activities.

Accordingly, we conclude that the evidence preponderates against the trial court's finding of 100 percent total permanent disability, and modify the award of benefits to 75 percent permanent partial disability to the body as a whole.

SECOND INJURY FUND LIABILITY

Given this permanent partial disability finding, we now consider whether the Second Injury Fund is liable for any portion of the award under the Second Injury Fund Statute. Henson argues that the Second Injury Fund is liable for a portion of the award under Tenn.Code Ann. § 50-6-208(b)(1) (1991). In summary, the statute provides that when an employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of the awards equals or exceeds 100 percent permanent disability to the body as a whole, the awards are combined. The Second Injury Fund then becomes liable for any benefits due the employee in excess of 100 percent. Id.; see also Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 748 (Tenn.1990).

Here, the employee has received two prior workers' compensation awards, both involving a scheduled...