Michael T. Burum v. Bnfl, Incorporated and Hartford

This workers' compensation appeal has been referred to the SpecialWorkers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff, who fell at work, permanentpartial disabilityof 5 percent to the left leg. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C. J., and ROGER E. THAYER, SP. J., joined. Robert R. Davies, Knoxville, Tennessee, for the appellants, BNFL, Inc. and Hartford Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Michael T. Burum. MEMORANDUM OPINION Review of the findings of fact made 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. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Plaintiff's History The plaintiff, thirty-nine years of age at the time of trial, is a high school graduate. He attended classes at Tennessee Technical Institute and the University of Tennessee where he studied computer science. The plaintiff also served for eight years in the United States Armed Forces working in communications, computers, radios and electrical repair. The plaintiff's job history consists of work as a machine operator, a service desk employee and a paper technician with a large paper manufacturer. The plaintiff worked for the defendant, who contracted with the K-25 facility for waste management, as a waste management employee. On November 2, 1998, the plaintiff was carrying out his duties for the defendant when he fell and twisted his knee. The plaintiff eventually underwent surgery on the left knee. He testified the knee still causes him problems, and he can no longer participate in activities or work as before the injury. Discussion The trial court's decision in this case appears to be based mainly on the testimony of the plaintiff. Where the trial judge has made a determination based upon the testimony of witnesses whom he has seen and heard, great deference must be given to that finding in determining whether the evidence preponderates against the trial judge's determination. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When the trial judge sees and hears the witnesses, it is not for this Court to determine whether a witness has so far destroyed his credibility by inconsistent statements that the trial judge is unable to give credence to any of the witness' testimony. The trial judge's finding of fact in this regard is conclusive if there is any evidence to support it. Walls v. Magnolia Truck Lines, Inc., 622 S.W.2d 526 (Tenn. 1981). In this case, the trial court made no specific finding regarding the plaintiff's credibility or lack thereof. We find nothing in the record to undermine the trial court's decision to credit the testimony of the plaintiff. Both parties in this action agreed at trial that a worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member. Duncan v. Boeing Tenn., Inc., 825 S.W.2d 416 (Tenn. 1992). However, the plaintiff may provide such proof to the court as a factor for the court to consider when determining loss of use. In this case, the plaintiff testified as to the loss of use of his leg. He stated he did not believe he could do jobs he had previously done; he also testified he could no longer participated in sports_baseball, basketball, softball_as he had previously done. The plaintiff testified he could neither sit nor walk for long periods of time without pain and told the trial court that the injury bothered him "pretty much all the time." The plaintiff's testimony is unrefuted; the defendants offered no rebuttal proof at trial regarding the plaintiff's testimony about his vocational prospects -2-