Lona Swindle v. Unipres U.S.A. and Tennessee Department of Labor as Custodian for the Second Injury Fund of the State of Tennessee

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer asserts that the trial court erred in finding the employee's back injury compensable, in finding the employee to be permanently and totally disabled, and in apportioning the permanent total disability award between the employer and the Second Injury Fund. The Second Injury Fund also asserts the trial court erred in finding employee to be permanently and totally disabled and in calculating the award. The employee asserts the trial court erred in allocating a setoff for disability insurance payments. We reverse in part and modify in part. Tenn. Code. Ann. _ 5-6-225(e) (1999) Appeal as of Right, Judgment of the Macon County Circuit Court is reversed in part and modified in part. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, CHIEF JUSTICE, and JEFFREY S. BIVINS, SP. J. joined. M. Clark Spoden, Julie A. Schreiner-Oldham, Brian Neal, Frost Brown Todd, LLC, Nashville, Tennessee, for Appellant, Unipres, U.S.A., Inc. Paul G. Summers, Attorney General, Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for Appellant Second Injury Fund. William Joseph Butler, E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for Appellee, Lona Swindle. 1 MEMORANDUM OPINION Facts Lona Swindle filed her complaint against Unipres U.S.A., Inc. ("Unipres") for workers' compensation benefits on April 1, 22 alleging that she sustained "cumulative injuries to both of her hands, elbows and arms." She also alleged that she had received court awarded vocational disability for previous work injuries for which the Second Injury Fund would be responsible. The complaint did not mention any claim that she had sustained a work-related injury to her back. On January 14, 23, Ms. Swindle amended her complaint to add the assertion that she was permanently and totally disabled as a result of a "combination of the Plaintiff's pre-existing non-work-related injuries and/or conditions and the subject work-related injuries . . ." The amended complaint also did not mention any claim of a work-related back injury. In January 22, Ms. Swindle was diagnosed with bilateral carpal tunnel syndrome. She was treated by Dr. Roy Terry, who performed surgeries on both wrists. He released her to return to work without restrictions on June 27, 22. Ms. Swindle returned to work at Unipres with activities that were less repetitive, but involved heavier lifting and more bending than the job that caused the carpal tunnel syndrome. On September 13, 22, Ms. Swindle saw Jennifer Dittes, a certified physician's assistant with complaints of back pain. Ms. Swindle testified that she stopped working at Unipres on October 21, 22 because of back pain. She did not report a back injury to her employer as being work related. On April 8, 23, Ms. Swindle filed an application for long-term disability benefits for the back injury and represented her injuries were not work related. Decision Below The trial court found that the Ms. Swindle's bilateral carpal tunnel syndrome was work- related, that the back injury resulted from the carpal tunnel syndrome, and that the combination of the injuries and her pre-existing condition caused her to be permanently and totally disabled. The trial court apportioned 7 percent of the award to Unipres and 3 percent to the Second Injury Fund. The trial court also granted Unipres an offset for payments to Ms. Swindle made by a disability insurance policy for long-term disability due to her back injury. Standard of Review The standard of review in a workers' compensation case 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. _ 5-6-225(e)(2); Houser v. BiLo, Inc., 36 S.W.3d 68, 7-71 (Tenn. 21). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in workers' compensation cases to determine where the preponderance of the evidence lies.