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Hull v. Emro Marketing Co.6/23/1998
RUTHERFORD CHANCERY
HON. DON R. ASH, JUDGE
MEMORANDUM
REVERSED and REMANDED
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.
The trial court found that the plaintiff suffered an injury by accident on February 23, 1995 and was entitled to an award of 22 percent permanent partial impairment to the body as a whole ( $14,080.00 for permanent partial disability and $960.00 for temporary total disability payable in a lump sum), medical expenses incurred after March 9, 1995, and future medical treatment caused by the injury. The trial court ruled that Emro Marketing Company ("Emro") was liable for the award because it was the employer at the time of the most recent injury that bore a causal relation to the plaintiff's incapacity.
Emro raises the following issues:
1. Whether the Chancellor erred in finding the subsequent employer liableunder the last injurious injury rule when the subsequent injury was notsuffered in the scope of the employee's employment with the subsequent employer.
2. Whether the Chancellor erred in applying the last injurious injury rule when the employee's initial injury was the strongest causal link to the disability of the employee, who had not fully recovered from her initialinjury?
The plaintiff contends the trial court properly found Emro liable, but says if it is not then Kwik Sak, Inc. ("Kwik Sak") and Reliance Insurance Company ("Reliance") are liable. Kwik Sak and Reliance say that Emro is liable as found, but if it is not then the plaintiff has not appealed from the action of the trial Judge dismissing them as defendants.
We find the trial Judge erred in applying the repetitive injury rule and/or the last injurious injury rule in this case and find Kwik Sak and Reliance were the insurers at the time of the plaintiff's injury.
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). Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995).
The application of this standard requires this Court to weigh in more depth the factual findings and Conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988).
FACTS
The plaintiff worked for Kwik Sak, a convenient store, as an assistant manager. In this capacity, the plaintiff was required to lift, bend, and stoop to load coolers and stock shelves. On November 9, 1994, the plaintiff was working alone on a busy day when she injured her back while stocking merchandise. The next day the plaintiff went to work and told her supervisor that her back was hurting.
On November 11, 1994, the plaintiff went to see a chiropractor named Dr. Bridget Most for back pain and told her that she never had back problems before the injury. The plaintiff checked on a form that her present problem was not due to any injury, but she also told the chiropractor that the back injury occurred at work and that she did not want to file a workers' compensation claim. The plaintiff testified that she never fully recovered from this initial injury.
On November 10, 1994, Emro bought and took control of the store from Kwik Sak pursuant to a Purchase and Sale Agreement. On this
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