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Binkley v. Tennessee Diecasting-Harvard Industries12/18/2003
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. ยง 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).
FACTUAL BACKGROUND
The employee, Darrell Dwain Binkley, filed his complaint for workers' compensation benefits alleging that he sustained an injury to his lower back on September 29, 1997, when he lifted a five gallon bucket of oil, weighing approximately 75 pounds, while at work for his employer, Tennessee Diecasting. His complaint alleged that his injury was permanent and that he was entitled to benefits for both temporary total and permanent partial disability, in addition to current and future medical care. Appellant denied the employee's claim in its entirety and further alleged that if the employee sustained an on the job injury that the court should dismiss the claim against it based on the "Last Injurious Injury Rule".
Following a trial on May 21, 2002, the court found that the employee sustained a compensable injury to his low back and awarded him five (5%) per cent permanent partial disability to the body as a whole. The court further found that the employee was entitled to benefits for a period of temporary total disability and that the "Last Injurious Injury Rule" did not apply to the facts of this case. The employer has appealed from the entire award.
The employee was 42 years old at the time of trial. He had a varied work history. He had been in the military, albeit briefly; had performed seasonal work at two different cotton gins over several years; had worked as a laborer at factories and warehouses and had been a maintenance man for two adult family homes in the State of Washington, one of which was owned by his former wife. He had also worked as a laborer and maintenance man for a diesel company. While working for this employer in 1988, he slipped and sustained a herniated disc at the L5-S1 level for which he underwent surgery. He received a workers' compensation settlement as a result of this injury.
LEGAL AND MEDICAL CAUSATION
The employee went to work for the Appellant in 1997. His duties were to operate a machine and to dispense parts. His job required constant lifting, bending and stooping. Part of his job required him to keep the machines well oiled and lubricated. The oil for the machines was carried in the plant in large open buckets. The oil would splash out of the buckets onto the floor causing a slipping hazard. On the day of his injury, he was preparing to carry oil to his machine in a 5 gallon bucket, weighing approximately 75 pounds. As he lifted the bucket, he felt a "pop" in his back causing a shock to run into his knees and toes and numbness, tingling and pain in his left leg and foot.
He advised his plant supervisor that he had been injured and was told to go to the emergency room at the local hospital where he was treated and released. He did not improve. The employer then authorized treatment by Dr. William Tucker, a family practice physician in Ripley. Again, he did not improve and was referred by Dr. Tucker to Dr. D.J. Canale, a Memphis neurosurgeon. Dr. Canale ordered an MRI performed. Dr. Canale read the MRI as showing a mild bulging disc, especially at the L5 level. Dr. Canale testified that he found no evidence of a
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