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Cleek v. Wal-Mart Stores6/2/2000
, does not preclude the commencement of temporary total disability at another point in time if the employee again becomes temporarily totally disabled").
In this case, although Dr. Cobb released the appellant to work on August 29, 1997, he also later advised the appellant to resign from that job because of the pain associated with her job-related injuries and her age. Even at the time of her resignation, the appellant still had not reached maximum medical improvement, which was on November 5, 1997. Consequently, even after the appellant returned to work, an identifiable period of time existed before maximum medical improvement when the appellant " totally prevented from working" because of a work-related injury . To adopt the appellee's construction of the statute would defeat the purpose of temporary total disability benefits, which works to ensure that the employee receives some compensation during "the healing period during which the employee is totally prevented from working." See, e.g., Fagg v. Hutch Mfg. Co., 755 S.W.2d 446, 452 (Tenn. 1988).
"From the very beginning, this Court has been ever mindful of the remedial nature of this legislation and the law had been uniformly construed so as to secure for the beneficiaries of the law every protection that a liberal construction would authorize." Fowler v. Consolidated Aluminum Corp., 665 S.W.2d 713, 715 (Tenn. 1984) (citing Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220 (1971); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717 (1929)); see also Tenn. Code Ann. ยง 50-6-116 (1999). We hold, therefore, that temporary total disability benefits, which are terminated because of a nominal return to work, may be revived when (1) the employee is no longer capable of performing either that job or any other job because of the work-related injury ; and (2) the employee, at the time of resignation, has yet to reach maximum medical improvement from the original accidental injury. Accordingly, we hold that the appellant's temporary total disability benefits should have been revived for the period of time between her final resignation and when she reached maximum medical improvement. The appellant is entitled, therefore, to two-thirds of the average weekly wage for the period of time between October 10, 1997 and November 5, 1997, or $560.82.
CONCLUSION
Based on our own de novo review of the record, we hold that the preponderance of the evidence does not support the chancery court's finding that the appellant is 20% permanently and partially disabled. Rather, we hold that the preponderance of the evidence establishes that the appellant is permanently and totally disabled. In addition, we hold that the appellant is entitled to a second period of temporary total disability benefits from her final resignation until she reached maximum medical improvement. This case is remanded to the Madison County Chancery Court for enforcement of the judgment as modified by this Court. Upon remand, the trial court should determine whether, and to what extent, the appellee is entitled to any offset from any Social Security old age insurance benefits received by the appellant.
Costs of this appeal are assessed to the appellee, Wal-Mart Stores, Inc., for which execution shall issue if necessary.
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