Jacob E. Carter v. Lumbermen's Underwriting

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Review of the findings of fact made by the trial court 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); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The issues raised on appeal are: whether the evidence preponderates against the finding by the trial judge that the plaintiff is permanently and totally disabled; whether the trial court erred in apportioning the liability of the insurer at 25 percent and of the Second Injury Fund at 75 percent; and whether the trial court erred in limiting the insurer's liability to 25 percent of 4 weeks and imposing liability on the Second Injury Fund for the remainder of the weeks until the plaintiff reaches age 65. We affirm the findings of the trial court that the plaintiff is permanently and totally disabled and that the apportionment of this liability is on the basis of 25 percent to the insurer and 75 percent to the Second Injury Fund. We modify the apportionment of the liability at 25 percent of 4 weeks to the insurer and the remaining liability to the Second Injury Fund. We apportion the award in accordance with the holding of the Supreme Court in Bomely v. Mid-American Corp., ___ S.W.2d ___ (Tenn. 1998). The plaintiff has an extensive medical history as demonstrated by the medical evidence in this case, which consists of the depositions of five physicians, the report of physician, and the appearance of two physicians at trial. Additionally, the medical records of one physician were introduced by the Second Injury Fund. The medical evidence consists of physical evaluations and treatment, as well as a psychiatric evaluation. The plaintiff also presented a vocational expert's testimony at trial. 2