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Petitt v. Associated General Contractors8/11/2000
Mailed - July 6, 2000
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 appellant-insurance fund appealed the trial court's award of 35% disability to the body as a whole under T.C.A. § 50-6-241(a)(2) after a reconsideration hearing. On appeal, appellant argues the award was improper because it was not established that the loss of employment was causally related to his injury and that the increased award was excessive. Judgment of the trial court is affirmed as recent ruling in Niziol v. Lockheed Martin Energy Systems, Inc. by the Supreme Court controls the reconsideration issue and award was reasonable and not excessive.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed
THAYER, SP. J., delivered the opinion of the court, in which ANDERSON, C. J., and BYERS, Sr. J., joined.
OPINION
Background
This action was instituted by the employee, Fred Petitt, requesting the court to reconsider a 14% award of permanent partial disability pursuant to the provisions of T.C.A. § 50-6-241(a)(2). The employee had sustained a work-related back injury on February 15, 1996, while moving certain equipment when he slipped and fell on a slick surface where kerosene had spilled. An action for workers' compensation benefits was filed and later settled and was court approved wherein the award was capped under T.C.A. § 50-6-241(a) which imposes a maximum award of two and one-half times the medical impairment. After being off for about six weeks, the employee returned to work and continued to work until January 1998, when he was laid-off by his employer, Grant-Neal Electric.
Upon reconsidering the award of the settlement, the trial court enlarged the award by increasing same to 35% disability to the body as a whole.
Issues on Appeal
The appellant insurance fund argues the trial court was in error in enlarging the award under subsection (a)(2) of the statute because the employee's loss of employment was not causally related to his injury and also that the award of disability was excessive under the proof submitted. The employee contends the award should have been fixed at the maximum six times the medical rating.
Reconsideration Issue
T.C.A. § 50-6-241(a)(2) generally provides that the courts may reconsider an award of industrial disability when (1) the employee is no longer employed by the pre-injury employer, (2) the application for reconsideration of the award is made to the appropriate court within one year of the employee's loss of employment, and (3) the loss of employment is within 400 weeks of the day the employee returned to work.
The insurance fund cites and relies on two decisions of the Special Worker 's Compensation Appeals Panel to support its argument that an award cannot be increased at a reconsideration hearing unless it is established the loss of employment was causally related to the injury sustained by the employee. These Panel decisions are Matheny v. Insurance Company of North America, NO. 02S01-9604-CH-00034, filed January 27, 1997 at Jackson and Howell v. Murray, Inc., NO. 01S01-9609- CH-00176, filed September 12, 1997, at Nashville.
In the Matheny case, the employee returned to work at a wage equal to or greater than the wage he was receiving at the time of the injury and the award of disability was capped at two and one-half times the medical impairment. Sometime later he suff
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