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Caksakkar v. Goodyear Tire & Rubber Co.12/16/2003
STANDARD OF REVIEW
The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e)(2). Stone v. City of McMinnville, 896 S.W. 2d 548,550 (Tenn. 1995). This court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn. 1981). The standard governing appellate review of findings of fact by a trial court requires the Special Workers' Compensation Appeals Panel to examine in depth the trial court's factual findings and conclusions. GAF Bldg. Materials v. George, 47 S.W. 3d 430, 432 (Tenn. 2001). When all of the expert medical testimony offered in a workers' compensation case is by deposition, the reviewing court may exercise it's own judgment as to the weight and credibility to be given the testimony in making an independent assessment as to where the preponderance of the evidence lies. Government v. Williams Sonoma, Inc., 803 S.W. 2d 672, 676 (Tenn. 1991).
FACTUAL BACKGROUND
The employee, Edward Earl Caksakkar, filed a complaint for workers' compensation benefits alleging that he sustained a twisting injury to his lower back on December 29, 1997. This injury was followed by an additional low back injury on January 2, 1998, when he was thrown from a buggy at work into some skids stacked nearby, thereby exacerbating his earlier low back injury. His complaint alleged that his injury was permanent and that he was entitled to benefits for both temporary total and permanent or permanent partial disability, in addition to current and future medical care. Additionally, the employee brought his complaint against the "Second Injury Fund" pursuant to T.C.A. §50-6-208(b) because of a prior back injury which he sustained on November 5, 1981, while working for the same employer. As a result of his 1981 work injury, the employee entered into a workers compensation settlement based on 25% permanent partial disability to his body as a whole.
Following a trial on August 7, 2002, the court found that the employee sustained compensable injuries to his low back on December 29, 1997, and January 2, 1998, and that as a result of these injuries he was permanently and totally disabled. The trial court further found that the liability for the permanent and total disability benefits should be apportioned among the defendants pursuant to T.C.A. §50-6-208(a) and that pursuant to said statute the employee's current injury accounted for 25% of this total disability. The court then found that the employer, Goodyear, was, therefore, liable for 25% of the permanent and total benefits due to the employee, and the Second Injury Fund was liable for the remaining 75% of the benefits due. Neither the employer nor the Second Injury Fund contest the trial court's finding of permanent and total disability. The Second Injury Fund has, however, appealed from the trial court's apportionment of liability between the Fund and the employer.
The employee went to work for the appellant in 1977. He previously had injured his low back in 1981 while working for the appellant. He underwent surgery for this injury and received a settlement in 1983 based on a vocational disability of 25% to the body as a whole. Following his recovery from the surgery he returned to full-duty employment for the appellant with no restrictions. He worked continuously performing heavy labor for the appellant without incident until his injuries forming the basis of his complaint. According to the evidenc
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