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Cleek v. Wal-Mart Stores6/2/2000
FOR PUBLICATION
The primary issue in this workers' compensation direct appeal is whether the evidence preponderates against the trial court's findings that the appellant is 20% permanently and partially disabled. We are also asked to decide whether the appellant is entitled to an additional period of temporary total disability benefits after she made a nominal return to work but later resigned because of pain associated with her original injury. This case was argued before the Special Workers' Compensation Appeals Panel on August 13, 1999, but before an opinion was issued by the Special Panel, the case was transferred to the Supreme Court for an en banc hearing. After a thorough review of the record in this case, along with consideration of the relevant legal authorities, we hold that the evidence does preponderate against the findings of the trial court and that the evidence establishes that the appellant is permanently and totally disabled. We further hold that the appellant is entitled to an additional period of temporary total disability benefits for the period between her resignation and maximum medical improvement. We modify the judgment of the Madison County Chancery Court, and we remand this case for enforcement of our judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Madison County Chancery Court is Modified, and Case is Remanded for Enforcement of Judgment as Modified by this Court.
Barker, J., delivered the opinion of the court, in which Anderson, C.J., and Birch, J., and Holder, J., joined. Drowota, J., not participating.
OPINION
In September of 1989, Ms. Linnie Cleek, the appellant in this case, went to work for Wal-Mart Stores in Bolivar, Tennessee as a door greeter. Nine years earlier, her husband, who provided the sole source of income for the family, was forced to retire from Colonial Bakery because of health reasons. Although the family survived for several years on disability benefits from Colonial Bakery and social security payments, the family needed additional income to make ends meet. It was at this point in 1989 that the appellant, who had no formal education beyond the tenth grade, entered the workforce for the first time in her life at the age of 64.
After working for Wal-Mart as a door greeter for eight years, the appellant suffered an injury in the course and scope of her employment on July 5, 1997. As she was assisting a customer to verify an article of purchase, she tripped over a couple of pallets left on the floor by another Wal-Mart employee, and she fell to the floor. As a result of her fall, she suffered a four-part fracture to her left shoulder as well as significant bruising throughout that area. Given her advanced age-the appellant was now 72-and the nature of the fractures, Dr. Michael Cobb, the appellant's treating physician, recommended that the appellant forego surgery.
On August 27, 1997, Dr. Cobb released the appellant to return to work with several restrictions. Although she attempted to perform her job as she had done before the accident, she had significant difficulties doing so. She could no longer do many of the duties that she was previously capable of doing, such as washing the windows and emptying the trash cans. In addition, she had trouble putting stickers on returned merchandise and frequently dropped these items when handed to her. The appellant testified that because of these difficulties, many of the customers became agitated when she had trouble assisting them.
Most importantly, though, the appellant testified that she experienced considerable pain throughout her entire left arm, even though only the shoulder was actually broken. In fac
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