Charles E . Carey v. Carolina Freight Carriers

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In its appeal, the employer contends that the evidence does not support the trial court's award of seventy percent (7%) to the lower extremity and that the trial court erred in computing the employee's average weekly wage at $273. instead of $22.21 per week. The panel concludes that the evidence preponderates against the trial court's assessment of permanent disability and modifies th e award to thirty-five percen t (35%) to the lower e xtremity. Prope rly computed, the employee's average weekly wage is $22.21 per week. Charles E. Carey ("Carey") was injured on December 27, 1991, when a bank vault weighing five hundred pounds fell off a fork lift and struck the front part of his left thigh. He was initially treated by Dr. R. Michael Cobb, an orthopedic surgeon, who suspected a torn ligament in Carey's knee. Dr. Cobb later concluded, however, that the ligament was not torn and that surgery was not needed. In February, 1992, Carey began to complain of numbness in his toes, although Dr. Cobb was unable to find any indication of injury to the sciatic nerve, which provides feeling to the toes. Carey was given a note to return to work on March 1, 1992. Upon examination on March 16, 1992, Carey's range of motion was excellent and his strength appeared to be normal. He advised Dr. Cobb that he was hav ing no pro blem at w ork. A ne rve cond uction study, pe rformed as a result of the c ompla ints of to e num bness, s howe d no sig n of inju ry to the sc iatic nerv e. Carey was given no permanent physical anatomical impairment and was discharged from Dr. Cobb's care on March 16, 1992. When he returned to work in March, Carey performed the same duties that 2