Lowe v. Jefferson

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. This appeal has been perfected by the employer, Jefferson City Zinc, later identified by stipulation as Savage, Inc., from a ruling by the trial court that the employee, Walter P. Lowe, was totally and permanently disabled as a result of a work-related accident which occurred on October 22, 1992. On appeal there are only two issues. First, the employer questions the trial court's determination of total disability and ordering benefits payable under T.C.A. _ 5-6-27(4) until the employee becomes sixty-five years of age. In the second issue, the employer contends the court was in error in apportioning the award of benefits under T.C.A. _ 5-6-28(a) causing the employer to be liable for 65% of the award and the state Second Injury Fund to be liable for 35% of the award. As to the first question, the employer concedes employee Lowe is totally disabled but argues the award should not be fixed at 1% disability because the medical impairment does not exceed 12% for the last injury and that T.C.A. _ 5-6- 241 limits disability awards to six times the medical impairment, which would be a 72% award. In support of this reasoning, it also contends employee Lowe meets three out of the four factors set out in T.C.A.. _ 5-6-242 and, therefore, the award of benefits would be payable for a period of four hundred weeks. The trial court heard conflicting evidence from several expert medical witnesses. All of this testimony was by deposition. Dr. Robert E. Finelli, a neurosurgeon who had treated the employee for the last injury and several prior injuries, gave a 12% medical impairment for the last injury. Dr. Mark McQuain testified to a 11% impairment. Dr. W illiam E. Kennedy, an orthopedic surgeon, gave a 2% impairment. In addition to this evidence, the court heard testimony from Dr. Kelley W alker, a psychiatrist, who was of the opinion the employee was suffering from a depressive disorder due to his last injury. She assessed his permanent disability as a Class 3, Moderate Impairment, which means his impairment level is compatible with some but not all useful functioning. She told the court the Third and Fourth Editions of AMA 2