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Binkley v. Tennessee Diecasting-Harvard Industries12/18/2003
we are not persuaded otherwise.
TEMPORARY TOTAL DISABILITY
The employee was injured on September 27, 1997. He was off work until November 7, 1997, when he was returned to work by Dr. Canale. The employer provided him with light duty work at full pay and stopped paying him temporary total disability benefits. His return to work lasted approximately three (3) hours after which he voluntarily terminated his employment. It was on this same date that he began seeking medical treatment at the V.A. Hospital in Memphis.
He continued to seek treatment at the V.A. for his work injury both in Memphis and Washington State culminating with his back surgery on December 30, 1999.
The post operative notes from the V.A. indicated that he was doing well following his surgery until January 10, 2000, when he "picked up a bag of sugar, and his problems began anew".
The trial court found that the employee had been unable to work from the time he voluntarily left his light duty employment with his employer and continued with his treatment at the V.A., including his surgery. The court found he reached maximum medical improvement on January 10, 2000, the date he picked up the bag of sugar.
Appellant argues that because the employee voluntarily left his employment while assigned to light duty, that he should not be entitled to reinstatement of additional temporary total disability.
As the Supreme Court stated in Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn.2000):
"T.C.A. §50-6-207(3)(A)(i) specifically provides that the injured employee shall receive compensation `for the period of time during which [the employee] suffers temporary total disability on account of the injury ' and thus the purpose served by such benefits is to allow for `the healing period during which the employee is totally prevented from working' Gluck Bros., Inc.v. Coffey, 222 Tenn. 6, 13-14, 431 S.W. 2d 756, 759 (1968)."
Appellant relies upon the employees return to work by Drs. Canale and Brophy. Based on the employee's findings at surgery and the opinion of Dr. Pieper, the trial court obviously found that both Drs. Canale and Brophy had been incorrect in their diagnosis at the time they returned the employee to work.
Moreover, as the court stated in Cleek, "the fact that benefits were terminated by a nominal return to work does not necessarily mean that temporary total disability benefits can never be revived under any set of circumstances". 19 S.W. 3d at 776.
The trial court found that the employee is entitled to an additional period of temporary total disability benefits for the period November 7, 1997, when he began seeking treatment at the V.A. Hospital until January 10, 2000. We agree with the trial court.
PERMANENT IMPAIRMENT
Once the causation and permanency of an injury have been established by expert testimony, the trial court may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomic impairment, for the purpose of evaluating the extent of a claimant's permanent disability. McCaleb v. Saturn Corp., 910 S.W.2d 412, 416 (Tenn. 1995).
T.C.A. § 50-6-241(a)(1) states that if the employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award that the employee may receive is 2.5 times the medical impairment rating determined pursuant to the provisions of the AMA Guides to the
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