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IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS' COMPENSATION APPEALS PANEL AT KNOXVILLE

FILED
June 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk

ERNEST RODNEY FORD, CIRCUIT Plaintiff-Appellee, vs. THE TENNESSEE COAL COMPANY COMPANY, Defend ant-Ap pellant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ANDERSON COUNTY

NO. 03S01-9806-CV-00060 THE HONORABLE JAMES B. SCOTT, JR., JUDGE

ODIS E. PHILLIPS, Plaintiff-Appellee, vs. THE TENNESSEE COAL COMPANY, Defend ant-Ap pellant.

NO. 03S01-9806-CV-00061

For the Appellant: Robert Knowlton 105 Donner Drive, Suite B PO Box 4459 Oak Ridge, TN 37831-4459

For the Appellee: Roger L. Ridenour P.O. Box 530 Clinton, Tennessee 37717

Mailed May ____, 1999 MEMORANDUM OPINION

Mem bers of P anel: Justice William M. Barker Special Judge Howell N. Peoples Special Judge Joe C. Loser, Jr.

AFFIRMED and REMANDED

PEOPLES, Special Judge

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OPINION These workers' compensation appeals have been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. Section 50-6225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appeals present a common issue of law involving the application of Tennessee Code Annotated Section 50-6-241. If an employer initially returns an injured employee to work at the same rate of pay after an injury but then goes out of business, is the employee's award capped at two and one-half times the medical impairment rating? The trial court refused to limit the award. We affirm. Ernest Rodney Ford Ernest Rodney Ford, age 24, received a special education diploma from high school. He has trouble reading and writing. He went to school each day for two or three hours then worked at Pallets Plus for five to six hours as a co-op student. His work at Pallets Plus involved catching wood, running a forklift, and operating a nail gun. After high school, he went to work at Beech Grove Processing, a predecessor of Tennessee Coal Company, as a washer and later transferred to the mines. At the mines, he carried straw, seeded landslides and old strip sites, drove a truck and front-end loader, and helped maintain equipment. He did deep mining for about five years until the mine shut down. He worked in a space 18 feet wide and 42 to 46 inches high. His back "popped" when he picked up a template that weighed 30 to 40 pounds. He was off work for 88 days and requested to go back to work. Mr. Ford returned to work with limitations to avoid excessive bending and stooping, and permitting him to lift up to 20 pounds frequently and 40 pounds occasionally. He had physical problems when he returned to work and was thinking of quitting when the company closed the mine. He has been unable to find another job. Dr. Geron Brown, orthopedic surgeon, testified that Mr. Ford has a medical impairment of five percent as a result of the lumbar strain, and two percent for a pre-existing condition, for a total of six percent under the combined table of the AMA Guides. Dr. William Kevin Bailey, a physiatrist, testified that Mr. Ford just aggravated his pre-existing spondylolistheses and that there was two percent impairment specific to this injury. He and Dr. Brown agreed on the limitations placed on Mr. Ford.
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Rodney Caldwell, a vocational consultant, testified that Mr. Ford reads at a third grade level, can do arithmetic at a ninth grade level, and has a 45 to 50 percent vocational disability based on the physical limitations.

Odis Earl Phillips Odis Earl Phillips, age 46, graduated from high school in 1970. During high school, he worked for the Job Corps painting and mowing grass. After high school, he worked in deep mines and strip mines, drove an eighteen-wheeler, operated a front-end loader, and worked part-time as a security guard. He has a "diploma" as a residential electrician. At the time of the injury, he was cleaning around a belt drive at the mine. He picked up rock that had spilled and felt pain his back. He was hurt on Thursday, stayed off on Friday, and went back to work on Saturday with limitations. The doctor found a ruptured disc. Even though Mr. Phillips had pain while working, he went back to the deep mine because "it was his job." He was given restrictions of lifting 20 pounds frequently and 40 pounds occasionally. He could not work underground with those restrictions. He was building a house for himself before the injury that led to this claim. He is not able to work around his house now, and is unable to do anything at home after work but sit in a recliner. Six months after the mine closed, he got a job driving a truck at $8 per hour. At the mine, he earned $13.25 per hour. He has new restrictions of sitting no more than four to six hours per day for only one to two hours at a time. He testified that his back is getting worse. Dr. William Kevin Bailey testified that he diagnosed lumbar strain with "one disc that was perhaps more of a large bulge if not a small herniated disc at the L-4, L-5 level, which is the second to the last disc in the lower back." He assessed a permanent medical impairment of five percent to the body and imposed restrictions of lifting 20 pounds with frequency and 40 to 50 pounds maximum, and decreased stooping, standing, twisting and bending. Dr. Geron Brown, Jr. saw Mr. Phillips for an independent medical examination and concurred with Dr. Bailey. Rodney Caldwell, the vocational consultant, testified that Mr. Phillips had a 45

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percent vocational disability. The Tennessee Coal Company The Tennessee Coal Company closed the mine where Mr. Ford and Mr. Phillips worked on August 5, 1997. All employees were paid 60 days severance pay through October 5, 1997. Standard of Review "Appellate review in a worker's compensation case is de novo upon the record with a presumption that the findings of the trial court are correct. Tenn. Code Ann.

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