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Argo v. Brentwood Services Administrators11/12/2002
The employee or claimant, Argo, initiated this civil action to recover workers' compensation benefits for an alleged work related injury occurring on June 2, 1999, while he was working for the employer, Warren County Sanitation Department. The cause was dismissed as to Warren County's workers' compensation administrator, Brentwood Services Administrators, Inc. Local Government Workers' Compensation Fund, Warren County's insurer in June 1999, was added as a third party defendant. Local Government Workers' Compensation Fund contended the accident occurred after its coverage lapsed on July 1, 1999. On that issue, summary judgment was issued in favor of Warren County, there being undisputed proof that the accident happened in June, before coverage lapsed. The propriety of that order is not directly questioned in this appeal.
After a trial of the remaining issues on October 22, 2001, the trial court, finding the injury to have occurred on June 2, 1999, as alleged, awarded, among other things, permanent partial disability benefits based on 37.5 percent to the body as a whole. Local Government Workers' Compensation Fund has appealed.
For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. ยง 50-6-225(e)(2) (2001 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. Wingert v. Government of Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995). The standard governing appellate review of findings of fact by a trial court requires the Special Workers' Compensation Appeals Panel to examine in depth a trial court's factual findings and conclusions. GAF Bldg. Materials v. George, 47 S.W.3d 430, 432 (Tenn. 2001). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The trial court's findings with respect to credibility and weight of the evidence may generally be inferred from the manner in which the court resolves conflicts in the testimony and decides the case. Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d 57, 61 (Tenn. 2001). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998). The extent of an injured worker 's vocational disability is a question of fact. Seals v. England/Corsair Upholstery Mfg., 984 S.W.2d 912, 915 (Tenn. 1999). Where the medical testimony in a workers' compensation case is presented by deposition, the reviewing court may make an independent assessment of the medical proof to determine where the preponderance of the proof lies. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn. 2002).
Mr. Argo is 53 years old with a tenth grade education and no special skills or training. He has worked for the Warren County Sanitation Department since 1995. While at work on June 2, 1999, he climbed on top of an open top container box for the purpose of rolling a tarp across it. His feet slipped and he fell on his right side across a dryer, injuring his back and right shoulder. He went to an emergency room the following weekend. The emergency room physician attending him testified that his complaints were c
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