Stephen Baxendale v. Universal Underwriters Insurance

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Baxendale, contends (1) the award of permanent partial disability benefits is inadequate and (2) the trial court erred in computing his compensation rate. The employer and its insurer contend the trial court erred in finding the employee suffered a compensable injury by accident on June 6, 1994. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified and the judgment otherwise affirmed. The claimant is a thirty-five year old laborer with a ninth grade education. He failed a test for a GED. At the time of the claimed injury, he was earning $6.39 per hour. Beginning in October of 1992, he suffered back pain at work, but continued working while being conservatively treated for pain. At one time the treating physician assigned to him a four percent permanent whole person impairment rating. He was awarded permanent partial disability benefits based on ten percent to the body as a whole and returned to work as a laborer at the same wage rate he was earning before the injury. On June 6, 1994, he became disabled to work because of severe back pain and was diagnosed as having suffereda gradually developing ruptured disc. The doctor surgically removed the ruptured disc and estimated his permanent whole person impairment at nine percent, from appropriate guidelines. After recovering from the surgery, the claimant again returned to work at the same wage as before the disabling injury, but with significant lifting, bending, stooping and twisting restrictions. Another orthopedic surgeon evaluated the claimant and assigned a whole person impairment rating of ten percent, using different but equally appropriate guidelines. The claimant continued to suffer back pain while working as a warehouseman. Upon consideration of the above facts, the chancellor awarded permanent partial disability benefits on the basis of ten percent to the body as a whole for the June 6, 1994 injury, and fixed the claimant's compensation rate at $159.47 per week. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.