John Carbino v. Portland Utility Const. Co., Llc,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer and its insurer question (1) the trial court's finding that the employee's aortic dissection was an injury by accident arising out of his employment and (2) the award of permanent partial disability benefits based on 85 percent to the body as a whole for the combined effects of that injury and a subsequent compensable back injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Bridgett A. Wohlpart, Brentwood, Tennessee, for the appellants, Portland Utility Construction Company, LLC, and Travelers Property Casualty Corporation Lucius P. Hawes, Jr., Hopkinsville, Kentucky, for the appellee, John Carbino MEMORANDUM OPINION The employee or claimant, John Carbino, initiated this civil action on September 17, 1999 to recover workers' compensation benefits for two separate allegedly work related injuries. The first injury is alleged to have occurred on January 26, 1998, the second on June 23, 1999. On July 3, 21, after an earlier trial on the merits, the trial court awarded, among other things, permanent partial disability benefits on the basis of 85 percent to the body as a whole. The employer, Portland Utility Construction Company, and its insurance carrier, Travelers, have appealed. For injuries occurring on or after July 1, 1985, 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. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.