 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Binkley v. Tennessee Diecasting-Harvard Industries12/18/2003
s limited to only those events occurring after an employee attains maximum medical improvement, regardless of the employee's own actions, would be contrary to the holdings of other cases and to the purposes of Section 50-6-241.
...
...an employee cannot avoid the statutory caps and thereby augment his award through his unilateral acts when those acts are unrelated to the injury ." Slip Op., p.6.
The trial court found that the Appellant fully complied with the statute in providing the employee with a job , albeit light duty, at his full pre-injury wage but that the employee chose not to perform it, even though he was fully capable of doing so. Based on these facts, the trial court found that the caps of 2.5 times the anatomical impairment rating applied. We agree.
The Appellant then urges that the employee should not be awarded any permanent physical impairment. It argues that Drs. Canale and Brophy gave the employee 0% impairment and that Dr. Pieper's rating of 2% was not given until after the employee's "third" back injury in January, 2000 when he lifted a bag of sugar.
Dr. Pieper testified, however, that his impairment rating was based on the employee's second disc surgery in1999. He testified that the employee had a 10% anatomical rating for his 1988 surgery and that the AMA Guide provides an additional 2% for his 1999 surgery at the same L5-S1 level.
The trial court applied the 2.5 caps and found that the employee sustained a 5% permanent physical impairment to the body as a whole based on his anatomical impairment of 2%. We find that the evidence does not preponderate against the trial court's award.
THE LAST INJURIOUS INJURY RULE
Finally, Appellant argues that the trial court erred in not applying the "Last Injurious Injury Rule" to the facts of this case.
The substance of the Appellant's argument is that the employee sustained a "third injury " in January, 2000, when he picked up a bag of sugar and that this injury should serve to shift the entire responsibility for his impairment to the person or entity responsible for his last or most recent injury in a series of successive injuries. Appellant relies on the Supreme Court's decision in Riley v.INA/Aetna Ins. Co., 825 S.W. 2d 80 (Tenn. 1992). We believe the Appellant's reliance on Riley and on the application of the rule to the facts of this case is misplaced.
Under the Last Injurious Injury Rule, an employer takes the employee as he finds him and if an employee, having previously sustained an injury while working for a different employer, is injured on his new job and the new injury is causally connected to his employment, the new employer is liable for the effects of the entire injury even though the resulting disability is far greater than if the second injury were evaluated on its own. Baxter v. Smith, 364 S.W.2d 936, 943 (Tenn. 1962).
In Riley, the employee, a 44 year old truck driver with an existing 40% disability to the body as a whole, sustained a work-related back injury. Following back surgery and before reaching maximum medical improvement, the employee began work for another employer. He sustained another back injury while working for the new employer. The employee brought separate suits against both employers for the injuries sustained while working for them. The court sustained the trial court's finding that the Last Injurious Injury Rule was inapplicable because "there was an assessment of [employee's] first-injury permanent disability before the occurrence of the second injury." In fact, the employee's physician did not actually assign the employee a permane
Page 1 2 3 4 5 6 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|