Skipper v. Great Central Ins. Co.

Decision Date06 December 1971
Citation3 Pack 584,474 S.W.2d 420,225 Tenn. 584
Parties, 225 Tenn. 584 Nathan SKIPPER, Appellee-Petitioner, v. GREAT CENTRAL INSURANCE COMPANY, Appellee-Defendant, and Charles E. Worley, in his capacity as Treasurer of the State of Tennessee, and as Custodian of the Second Injury Fund, Appellant-Defendant.
CourtTennessee Supreme Court

Norbert J. Slovis, Knoxville (Lockett, Slovis & Weaver, Knoxville, of counsel), for appellee-petitioner.

Stuart F. Dye, Knoxville (Kramer, Dye, Greenwood, Johnson, Rayson & McVeigh, Knoxville, of counsel), for appellee-defendant.

David M. Pack, Atty. Gen., C. Hayes Cooney, Asst. Atty. Gen., for appellant-defendant.

OPINION

DYER, Chief Justice.

This is an appeal by Charles E. Worley, Treasurer of the State of Tennessee, and Custodian of the Second Injury Fund, pursuant to T.C.A. § 50--1027, from a judgment awarding Nathan Skipper, designated herein as employee, benefits payable out of said Fund.

Employee, male, age 37, attained a 9th grade education. At the age of eleven months employee contracted poliomyelitis, resulting in the following permanent physical weaknesses: marked muscle weaknesses in both feet and legs; deformity of the left foot and heel, claw toes on both feet with weak dorsiflexors of both ankles and a drop foot gait bilaterally; a waddling gait necessary in order to clear the floor during the swing through. At about the age of twenty-seven, employee suffered a permanent injury to his right eye when a battery exploded, leaving little vision in this eye.

Employee with these handicaps had for the past twelve or so years worked in various grocery stores, handling stock, operating the cash register, and helping in the meat department. On June 1, 1970, while employed by the Thirteenth Street Grocery he got his left hand caught in a conveyor belt, which injury required amputation of some of the fingers on the hand. As a result of this injury employee brought this suit against Great Central Insurance Company, the insurance carrier for his employer and Charles E. Worley, in his capacity as Custodian of the Second Injury Fund. Employee sought benefits from Great Central Insurance Company for one hundred per cent loss of use of his left hand and benefits from the Second Injury Fund on the basis he was now totally and permanently disabled.

The chancellor awarded employee benefits based on fifty per cent permanent partial loss of use of the left hand in the amount of $3,379.05, payable by the Great Central Insurance Company. The chancellor finding employee was now totally and permanently disabled, awarded employee the remaining benefits due for such disability, the commuted amount being $11,948.42, payable from the Second Injury Fund. Charles E. Worley, as Custodian of the Second Injury Fund, appealed, assigning one error as follows:

That the trial court erred in awarding a recovery from the Second Injury Fund on the ground that there is no material evidence to support the trial court's finding that the Petitioner is permanently and totally incapacitated as required under T.C.A. § 50--1027.

Employee described the manner in which he was able to work in his handicapped condition prior to the injury to his left hand. Employee returned to work about October 21, 1970, for the same employer and described how his work after the injury to his hand by the use of his right hand and the heel of his left hand. Employee stated his work after the injury to his left hand was more difficult than before, and in its use he suffered pain.

John Valentine, an employee of the Tennessee Department of Employment Security for 16 years, with the duty of obtaining employment for applicants, testified as follows: That he would not consider employee to be unemployable, but that a person of employee's education, abilities and infirmities would be very difficult to place.

Dr. John H. Bell, an orthopedic surgeon, stated employee 'has a total permanent medical impairment at the present time of approximately fifty per cent to the body as a whole.' Dr. Bell also stated in view of employee's physical condition and education, he 'can be expected to have extreme difficulty in obtaining employment in occupations he is able to handle.'

Mr. Earl Davis, owner of the Thirteenth Street Grocery, testified employee had been working for him for about three years, operating the cash register and looking after stock; that when employee returned to work after the injury he was assigned the same duties, but in the use of his left hand he had slowed down; that he paid employee the same wages by the hour after the injury as he had paid him before the injury.

The custodian of the Second Injury Fund argues under the definition of permanent total disability set out in T.C.A. § 50--1007(e), employee is not permanently and totally disabled as required by T.C.A. § 50--1027, since it is conclusively shown employee after the injury to his left hand returned to work in the same type of employment and at the same wages as he had prior to his injury.

The pertinent part of T.C.A. § 50--1007(e), defining permanent total disability reads as follows:

When an injury . . . totally incapacitates the employee from working at an occupation which brings him an income, such employee shall be considered 'totally disabled'.

The controlling issue here is whether the fact employee after the injury to his left hand returned to work in the same type of employment, at the same wages, per se, precludes a finding by the court that employee is totally disabled as these words are used in T.C.A. § 50--1007(e).

On this issue the trial judge reasons as follows:

In my opinion this man will never be back in Court again, and this is his last crack, because I think he is totally disabled as far as the labor market is concerned, and that's what the courts look to. I don't know that he falls in the odd-lot classification referred to in Larson, because he does...

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13 cases
  • Corcoran v. Foster Auto GMC, Inc.
    • United States
    • Tennessee Supreme Court
    • February 1, 1988
    ...342-343 (Tenn.1976); Employers-Commercial Union Companies v. Taylor, 531 S.W.2d 104, 105 (Tenn.1975); Skipper v. Great Central Insurance Co., 225 Tenn. 584, 592, 474 S.W.2d 420, 424 (1971). In cases of unscheduled injuries, once the threshold issue of permanency is established by competent ......
  • Miller v. Alloy Cladding Company, Inc., No. W2005-01928-WC-R3-CV (Tenn. 8/7/2006)
    • United States
    • Tennessee Supreme Court
    • August 7, 2006
    ...S.W.2d 341, 342-43 (Tenn. 1976); Employers-Commercial Union Cos. v. Taylor, 531 S.W.2d 104, 105 (Tenn. 1975); Skipper v. Great Cent. Ins. Co., 474 S.W.2d 420, 424 (Tenn. 1971). In cases of unscheduled injuries, the court in Corcoran pointed out that once the threshold issue of permanency wa......
  • Craven v. Corrections Corporation of America and American Home Assurance Company, No. W2005-01537-SC-WCM-CV (Tenn. 10/26/2006)
    • United States
    • Tennessee Supreme Court
    • October 26, 2006
    ...S.W.2d 341, 342-43 (Tenn. 1976); Employers-Commercial Union Cos. v. Taylor, 531 S.W.2d 104, 105 (Tenn. 1975); Skipper v. Great Cent. Ins. Co., 474 S.W.2d 420, 424 (Tenn. 1971). Here, Dr. Moskovitz testified within the general parameters of the AMA Guidelines as to Mr. Craven's diagnosis and......
  • Tennlite, Inc. v. Lassiter
    • United States
    • Tennessee Supreme Court
    • February 6, 1978
    ...re-employed through the magnanimity of his former employer is no bar to a finding of permanent disability. Skipper v. Great Central Ins. Co., 225 Tenn. 584, 474 S.W.2d 420 (1971). In his memorandum of law the trial judge cited several authorities which stand for the proposition that legal d......
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