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Lewis v. Saturn Corp.9/6/2000
nn. 1985).
We find the evidence does not preponderate against the trial court's finding of a compensable injury to the body as a whole.
Employee argues on her appeal that employer was not entitled to offset of $9,762.93 for disability payments made to employee from December 17, 1997 through May 12, 1998. At the beginning of the trial, employee's attorney stated, "I think we can agree on the issues of TTD payments and any set-offs as to disability." Nothing else in the entire record contains anything about a set-off. It is improper to raise an issue for first time on appeal. We do not deem this issue appropriate for review.
Employee next argues that the trial court erred in awarding employee a vocational disability of twenty percent (20%) to the body as a whole rather than awarding two and one-half (2.5) times the medical impairment rating (25%).
The record in this case shows that employee has returned to full time work and earns an amount that is at least equal to her earnings at the time of injury .
The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tenn. Code Ann. §50-6-225 (e)(2).
When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987).
The judgment of the trial court is affirmed. Costs on appeal are taxed to appellant.
JUDGMENT
This case is before the Court upon motions for review of Saturn Corporation and of Valerie A. Lewis pursuant to Tenn. Code Ann. § 50-6- 225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the motion for review of Saturn Corporation is not well taken and should be denied.
It further appears to the Court that Valerie A. Lewis' Motion for Review should be and is hereby granted solely as to the amount of setoff. The Court concludes that the Special Workers' Compensation Review Panel erred in holding that the issue of the amount of setoff was waived. This case is remanded to the trial court for purposes of conducting a hearing on the issue of the amount, if any, of the setoff to which the defendant, Saturn Corporation, may be entitled under Tenn. Code Ann. § 50-6-114(b).
It further appears to the court that all other issues presented in Valerie A. Lewis' Motion for Review are not well taken and should be denied.
It is, therefore, ordered that the Motion for Review of Valerie A. Lewis is granted as to the issue of setoff, and this case is remanded to the trial court for proceedings in accordance with this order. The remainder of Valerie A. Lewis' Motion for Review and the Motion for Review of Saturn Corporation are denied.
Costs are taxed equally to the parties, for which execution may issue if necessary.
IT IS SO ORDERED.
BIRCH, J., NOT PARTICIPATING
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