Michael Bruce Harris v. Magotteaux, Inc., et al

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer appeals the trial court's calculation of the workers' compensation award of permanent partial disability benefits using the employee's total medical impairment rating, as opposed to using only the medical impairment rating arising from the most recent injury. In addition, the employer's previous insurance carrier challenges the trial court's finding that it is equally liable along with the current insurance carrier for the employee's most recent injury and the employee's future medical benefits. The Panel concludes the award should be modified in part and reversed in part. We modify the trial court's judgment, finding that the employee is entitled to workers' compensation benefits solely for his most recent injury and award a 12% permanent partial disability to the body as a whole. An employee cannot combine a claim for a new injury with a claim for reconsideration of a pre-existing workers' compensation award when the employee sustains an additional injury. We reverse the trial court's judgment, finding that Home Insurance Company, the previous insurance carrier, is not liable for benefits arising from the second injury. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Modified in Part and Reversed in Part. GAYDEN, SP. J., in which DROWOTA, J., and LOSER, SP. J., joined. Joseph W. Henry, Jr., Henry, Henry & Speer, Pulaski, Tennessee, for the appellant, Magotteaux, Inc. 1 Rankin P. Bennett, Cookeville, Tennessee, for the appellee, Michael Bruce Harris William M. Billips, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for the appellee, Home Insurance Company and Home Indemnity Company MEMORANDUM OPINION The employee/appellee, Michael Bruce Harris, is a forty-year-old high school graduate, with no further schooling. He is married and has one child who is in the 12th grade. Since graduating from high school in 1978, the employee has held and performed jobs requiring a great deal of physical exertion. The employee worked at his first job at Torrington/ Fafnir from 1978 until 1988 as a material handler and equipment operator. In 1988, he started work for Magotteaux, Inc., the employer/appellant, as a field services technician. This job required the employee to drive a truck to various and distant locations throughout the country, erect equipment for the customer, and be on standby around the clock until the customer was satisfied. The employee would dismantle the machinery once the customer was finished and transport the equipment to the next location. The employee worked for the employer for 9_ years until his dismissal on January 11, 1999. Some time after the loss of his job, the employee and a friend borrowed $85, to open a retail package liquor store. The employee is presently working at this liquor store. While on the job working for the employer, the employee suffered two injuries to the same place in his back. No dispute exists as to whether the employee was on the job at the time of the injuries. Both injuries resulted in a ruptured disc on the right side at the L4/5 level of the spine and required laminectomies. The first injury occurred on June 13, 1994. Dr. Verne Allen, the neurosurgeon who performed the first laminectomy, assigned a 1% medical impairment rating in accordance with the Fourth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment. After the first injury, the employee returned to his job at the same or greater pay. He received a workers' compensation award in the amount of 25% permanent partial disability to the body as a whole. The trial court reached this number by multiplying the 1% medical impairment rating 2_ times, as allowed in Tenn. Code Ann. _ 5-6- 241(a)(1)(2). The employee suffered his second injury on March 21, 1998, on a job site in Pennsylvania. Dr. Vaughan Allen, a neurosurgeon, performed the second laminectomy and assigned an additional 2% medical impairment rating in keeping with the Fourth Edition of the AMA Guides. In his deposition, Dr. Allen agreed that the total physical impairment rating of these two laminectomies would be 12% medical impairment to the body as a whole. The employee returned to work, again at the same or greater pay. Dr. Vaughan Allen placed restrictions on the employee's physical activities; specifically, no lifting over thirty pounds on a repetitive basis, fifty pounds occasionally, no repetitive bending, and no driving a truck for two hours without getting out and moving around. Dr. Allen ordered the employee not to drive a truck in the capacity he had been doing before the second injury. The employee filed two complaints for workers' compensation following his second injury. 2