CHARLIE D. EVANS, JR. v. CHEROKEE INSURANCE COMPANY ET AL. (Tenn. Ct. App. May 28, 2009)
In 2005, the employee, a truck driver, sustained a compensable injury to his right leg that also aggravated a pre-existing low back condition. As a result of childhood polio, the employee's left leg and foot were substantially smaller and weaker than his right leg and foot. The employee reported this pre-existing condition to the employer when hired in 2003. Medical proof established the employee's combined anatomical impairment at 14% to the body as a whole. The trial court found that the employee was permanently and totally disabled. The trial court assigned 84% of the award to the employer's workers' compensation insurance carrier, Cherokee Insurance Company, and 16% to the Second Injury Fund. The employer appealed, arguing that the trial court erred by finding the employee to be permanently and totally disabled. The Second Injury Fund appealed, arguing that it is without liability because the employee performed his truck-driving duties without restrictions or accommodations, thus, the employer did not have "actual knowledge" of the employee's prior disability. Alternatively, the Second Injury Fund contends that the trial court's award of permanent and total disability is not supported by the evidence. After review, the judgment of the trial court is affirmed.
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