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Pratt v. Averitt Express2/14/2003
Facts
On October 27, 1999, Dale Pratt sustained a back injury in the course and scope of his employment with Averitt Express, Inc. ("Averitt"). His treating physician assigned a permanent medical impairment of seven percent to the body as a whole. At the time of the injury, Pratt was working as a truck driver and was paid $17.10 per hour for both regular and overtime hours he worked. Following the injury, medical restrictions prevented his return to work as a truck driver. Averitt trained him to be a dispatcher and retained him at a salary of $725 for a 40-hour week, the equivalent of $18.12 per hour and paid him overtime at the rate of $9.06 per hour. Mr. Pratt continued to work approximately the same amount of overtime as he had worked before the injury. Pay records introduced at the trial established that because of the difference in overtime pay per hour, the actual average weekly compensation received by Mr. Pratt before the injury was greater than that received after he returned to work in the new position. The trial court held that Mr. Pratt had "not returned to the same wage because he was earning less on an average weekly basis than he did prior to the injury; that the two and a half times under 241 (did) not apply; and that he is entitled to a permanent and partial disability to the body as a whole at three and half times seven percent for a rating twenty-four and half percent to the body as a whole in this case."
Standard of Review
Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise Tenn. Code Ann. § 50-6-225(e)(2); Tucker v. Foamex, L.P., 31 S.W.3d 241, 242 (Tenn. 2000). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Conclusions of law are subject to de novo review with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997).
Issue
The issue is whether the trial court erred in failing to apply the statutory cap of two and one-half times the employee's medical impairment pursuant to Tenn. Code Ann. § 50-6-241(a)(1).
Discussion
At the time of the trial of this case, the Tennessee Supreme Court had decided the case of Wilkins v. Kellogg Co., 48 S.W.3d 148 (Tenn. 2001) relating to an award of temporary partial disability and holding that the term "wage" as used in Tenn. Code Ann. § 50-6-207(2) referred to the amount paid to an injured employee by an employer on an hourly basis. The Supreme Court, with two members dissenting, distinguished the term "wage" as used in Tenn. Code Ann. § 50-6-207(2) from the term "average weekly wage" used in other portions of the Worker's Compensation Act. In Wilkins, the Court noted that "average weekly wage" includes such compensation as overtime, bonuses and commissions. It held that the term "wage" as used in Tenn. Code Ann. § 50-6-207(2) did not permit the inclusion of overtime in determining the amount of temporary partial benefits to be paid to an injured employee. Ms. Wilkins normally worked 60 hours each week and was paid at the rate of $21.52 per hour for 40 hours and a higher rate for overtime. Because the employer paid Ms. Wilkins the same hourly rate for 40 hours of work each week after she returned to work on light duty, she was not entitled to an increase in temporary partial disability benefits even though her weekly earnings were substantially reduced. The Supreme Court emphasized that it
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