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Cooksey v. CNA Insurance Co.12/20/1999
AFFIRMED IN PART, REVERSED IN PART, AND MODIFIED
OPINION
This worker's compensation appeal has been referred to the Special Worker's Compensation Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
This case involves a work-related back injury . The trial court's written judgment found that the plaintiff was returned to employment by the pre-injury employer but not at a wage equal to or greater than the wage the employee was receiving at the time of injury. Thus, the court found that the plaintiff is not limited to the two and one half (2½) times cap for permanent partial disability benefits as set forth in Tennessee Code Annotated § 50-6-241(a)(1). The court also found that the plaintiff meets three of the four requirements of § 50-6-242, particularly portions of § 50-6-242(1)(3) & (4), and, as a result, the plaintiff suffered a seventy-five (75) percent permanent partial disability to the body as a whole.
Review of the findings of fact made by the trial court is de novo upon the record, 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 depth the factual findings and conclusions of the trial court in a worker's compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). However, considerable deference must be given to the trial court, who has seen and heard the witnesses, especially where issues of credibility and weight of oral testimony are involved. Jones v. Hartford Accident & Indem. Co., 811 S.W.2d 516, 521 (Tenn. 1991).
The defendant asserts that the trial court erred when it found that the plaintiff suffered a seventy-five (75) percent permanent partial disability to the body as a whole as a result of a lumbar strain and submits the following issues for our review:
1. Whether the trial court erred in exceeding the twelve and one-half (12½) percent permanent partial disability benefits to the body as a whole based upon Tenn. Code Ann. § 50-6-241(a)(1)?
2. Whether the trial court erred in applying the "escape provision" of Tenn. Code Ann. § 50-6-242 where the plaintiff did not prove by clear and convincing evidence three of the four items as required by the statute?
For the following reasons, we affirm in part, reverse in part, and modify the trial court's judgment.
EVIDENTIARY FACTS
The plaintiff, age 45, a ninth grade drop-out, is an employee of Clayton Mobile Homes and has been for ten (10) years. The plaintiff's prior work experience was as a cook in a junior high school and at a shoe manufacturing plant. The plaintiff injured her back in June, 1996, while stapling floor decking. At the time of the injury, the plaintiff was a "swing person" building mobile homes and was primarily involved in the installation of electrical components. The plaintiff testified that this work required a lot of bending, stooping, pulling and lifting. The plaintiff testified that she was paid an hourly rate of $7.80 plus an incentive, but she would lose her incentive pay if she failed to show up for work or left early without permission. According to the plaintiff, she had participated in this program since it was first began at the company. The plaintiff also stated that prior to her injury, she was a "team leader" with some supervisory responsibilities. According to the plaintiff, she made ov
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