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Cox v. Hartford Accident & Indemnity Co.5/26/1999
REVERSED AND DISMISSED
OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and Conclusions of law.
After conducting two separate hearings on this case, the trial court found that the plaintiff was totally and permanently disabled. The trial court further held that the insurance carrier would be liable for 75 percent of the plaintiff's disability and the Second Injury Fund would be liable for 25 percent of the plaintiff's disability.
The Second Injury Fund presents the following issues for our review:
"I. Whether obesity is a compensable pre-existing permanent physical disability to warrant recovery from the Second Injury Fund under Tenn. Code Ann. § 50-6-208(a). "II. Whether the trial [court] erred in holding the Fund liable for 25% of theaward."
We reverse the judgment of the trial court holding the Second Injury Fund liable and dismiss the Second Injury Fund from this case.
BACKGROUND ON THE FIRST HEARING
At the time of the first hearing on June 14, 1994, the plaintiff was 33 years of age, stood over six feet tall, and weighed close to 400 pounds. He testified that most of his family is overweight and that he has always been a large person. The plaintiff's wife testified that her husband has lost some weight in the past but that he has always been heavy. After graduating from high school, the plaintiff's employment history included working as a small engine repairman, heavy equipment operator, carpenter, factory worker , meat processor, sewing machine operator, and tire builder. The plaintiff eventually returned to school and obtained an associate's degree in accounting from Draughon's College.
Draughon's College placed the plaintiff with Monday Realty, where he worked over four years as a bookkeeper three days a week and as a maintenance worker two days a week. When the plaintiff was hired by Monday Realty, he weighed approximately 310 pounds. He testified that he had some normal limitations due to his weight and that his employer made accommodations for him in that respect. For example, the plaintiff did not have to do any roofing work or crawl under houses.
On February 26, 1992, the plaintiff was repairing a screen door at a rental property when the porch collapsed and he fell with his legs pinned between the steps, causing him to jerk his back and scrape his legs. After the accident, he went home, but he could not sleep that night and could barely walk the next day. He returned to work the next day and reported the injury to his employer. Thereafter, the plaintiff was seen and treated by a series of doctors.
The plaintiff testified that prior to the injury to his back he did normal activities with his wife and kids. Since the injury, he just lies around, takes medication, and feels miserable. He testified that he is unable to concentrate on any job function and that he is unaware of any job he could perform in his condition. Further, the plaintiff testified that he has become depressed and suicidal as a result of the problems associated with the work injury.
Dr. Archer W. Bishop, Jr. , an orthopedic surgeon, testified by deposition on June 29, 1993. He first saw the plaintiff on February 28, 1992 and recorded a history of him falling and injuring his back when a porch collapsed under him. Dr. Bishop found that the plaintiff's x-rays were normal but that he had facet arthropathy in his back, which is normal wear and tear in the joints of the
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