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IN THE SUPREME COURT OF TENNESSEE
FILED

SPECIAL WORKERS' COMPENSATION APPEALS PANEL
AT KNOXVILLE  August 28, 1997  
(March 18, 1997 Session)  Cecil Crowson, Jr.  
Appellate C ourt Clerk  

VERNON SCOTT GOAD,  )  HAWKINS CIRCUIT
)
Plaintiff-Appellee, )  Hon. Ben K. Wexler,
)  Judge.  
v.  )
)  No. 03S01-9606-CV-00064  

CNA INSURANCE COMPANY, ) GENERAL SHALE PRODUCTS      ) CORPORATION and LARRY ) BRINTON, JR., Director of Workers' ) Compensation, Tennessee Department  ) of Labor, )
) Defendants-Appellants. )
For Appellant, CNA: For Appellee:
Robert D Van de Vuurst  Mark A. Skelton Steven H. Trent                                                        Rogersville, Tennessee Baker, Donelson, Bearman & Caldwell Johnson City, Tennessee
M E M O R A N D U M O P I N I O N
Members of Panel:
Frank F. Drowota, III, Associate Justice, Supreme Court William H. Inman, Senior Judge Joe C. Loser, Jr., Special Judge
AFFIRMED IN PART REVERSED IN PART DISMISSED Loser, Judge
MEMORANDUM OPINION

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusion s of law.  In this appeal, the employer insists the award of permanent partial disability benefits is excessive; and the claimant or employee insists the award of permanent partial disability benefits is inadequate, the trial court erred in finding part of the claimant's claim to be time barred, the appeal should be dismissed for failure to file part of the transcript, and the appeal is frivolous. As discussed below, the panel has concluded the trial court's judgment that the claim for disability benefits resulting from a 1989 injury is time barred should be affirmed, and that the award of permanent disability benefits from a 1992 injury should be reversed and dismissed.
This claim involves two separate injuries to the claimant, both arising out of and in the course of his employment by the same employer.  The first injury occurred in November of 1989, when the claimant strained his lower back while lifting a fuel cell.  The treating physician diagnosed lumbar disc injury with mechanical nerve compression.  He was unable to work for three months. Although the doctor assigned a permanent whole person impairment rating of five percent, the claimant returned to work and received no permanent disability benefits.
On April 8, 1992, the claimant injured his neck and low back in a fork lift collision, but was unable to work for only a few days.  On June 29, 1992, he saw Dr. Robert J. Wilson, who found no objective evidence of injury, but assigned an impairment rating of three percent, from subjective complaints of pain.
On January 5, 1993 and June 25, 1993, he saw Dr. William E. Kennedy, who diagnosed chronic low back and cervical syndrome superimposed on pre-existing degenerative disc disease.  Dr. Kennedy assigned a permanent impairment rating of eight percent and restricted the claimant from activities requiring bending, stooping, squatting, heavy lifting, working over rough terrain, excessive ladder or stair climbing, vigorous or strenuous pushing or pulling, repeated and vigorous jostling, or work requiring his hands to be raised above the level of his shoulders.
The claimant testified at the trial that he can no longer do housework, ride horses, or hunt and fish.
The trial court found the claim for benefits for disability resulting from the November, 1989 injury to be barred by the statute of limitations and awarded permanent partial disability benefits based on twenty-one percent to the body as a whole, from the secon d injury.  Six days later, the claimant saw another doctor and obtained a release to return to work with no restrictions. The employer's insurer moved to alter or amend the award and the trial court reduced the award of permanent partial disability benefits from one based on twenty-one percent to one based on fifteen percent to the body as a whole.
Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise.  Tenn. Code Ann. section 50-6

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