Opinion
No. 02S01-9712-CV-00107 Carroll Circuit No. 2877
January 5, 1999
CARROLL CIRCUIT, HON. JULIAN P. GUINN, JUDGE.
AFFIRMED
FOR THE APPELLANT:
GREGORY D. JORDAN, JEFFERY G. FOSTER, RAINEY, KIZER, BUTLER, REVIERE BELL, P.L.C., for Appellant.
FOR THE APPELLEE:
LARRY C. SANDERS, SANDERS LAW OFFICE, for Appellee.
MEMBERS OF PANEL:
Justice Janice Holder, Senior Judge John K. Byers, Special Judge John R. McCarroll.
MEMORANDUM OPINION
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. § 50-6-225(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. § 50-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 550 (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 trial court found the plaintiff to be totally and permanently vocationally impaired and entered judgment accordingly. The defendant contends the evidence preponderates against the trial judge's finding of total disability.
We find the evidence does not preponderate against the finding of the trial judge and we affirm the judgment.
The crux of this case is whether the opinion of Dr. Ray Hester concerning the medical impairment is to be to accepted, along with the testimony of the plaintiff, as the basis for the trial court's award, or whether the extent of the plaintiff's disability is less than that found by the trial court if the finding is primarily based upon the opinion of Dr. Lowell Stonecipher.
There are reports in the record from various other physicians which do not give much support to the plaintiff's claim of his disability but do not undermine it either, with the exception of the report of Dr. John Neblett, who treated the plaintiff and felt the plaintiff had not suffered any permanent neurological impairment as a result of his injury. Our reading of the reports and testimony of the various doctors satisfies us that the case is most clearly defined from a medical standpoint between Dr. Hester and Dr. Stonecipher.
The deposition of Dr. Hester, a neurosurgeon and the treating physician, goes into considerable detail about the plaintiff's condition and describes the surgery he performed on the plaintiff's spine to relieve the pain from a protruding disc, which occurred as a result of a fall while working for Pat Salmon Sons, Inc. as a truck driver. Dr. Hester described the plaintiff's condition and testified on the medical disability as follows:
This man has a 38% impairment to the body as a whole. He cannot bend from his waist while standing. He can not (sic) lift. He can not (sic) walk any distance. He can't sit very long at a time. He is in my opinion, totally unable to work in any kind of employable environment because of his continued problems with pain and restriction of motion and weakness.
Dr. Hester testified that using the Diagnostic-Related Estimates of the AMA Guides the plaintiff suffered a 10 percent impairment.
Reports from various doctors who had seen the plaintiff during the course of his treatment indicated there was no need for surgery and lack of neurological impairment. Some of these doctors felt the plaintiff was magnifying his symptoms and/or suffered psychological impairment as a result of his injuries.
Dr. Stonecipher's opinion was that the plaintiff exhibited signs of pain and disability which he could not document by objective testing. He was of the opinion the plaintiff had sustained a 10 percent medical impairment to the body as a whole.
The plaintiff at time of trial was 45 years of age and had a ninth grade education. He had worked in a sawmill, on a survey crew with the State of Tennessee Engineering Department, in a family owned grocery store, as a police officer, as a mobile home salesman, and as a truck driver. The plaintiff testified he continued to suffer pain in his back and legs and was unable to perform any of the jobs he had previously performed.
The plaintiff must establish the permanency of a work related injury by expert testimony in most cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 (Tenn. 1988). That has been done in this case by the testimony of Dr. Hester and the opinion of Dr. Stonecipher. The question becomes which of the physician's opinions is to be used, in conjunction with the lay testimony, to determine the extent of the impairment.
The trial judge may accept the opinion of one of the medical experts over the opinion of other medical experts who testify in this case. Johnson v. Midwesco, Inc., 801 S.W.2d 804 (Tenn. 1990). It appears from the finding of the trial judge that he primarily accepted the opinion of Dr. Hester.
When the medical evidence is submitted by depositions and by records, as it is in this case, we may evaluate the weight and value of the medical evidence. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, we do not disregard the findings of the trial judge on the medical evidence unless there is some compelling reason to do so. We find no reason in this case to discount the finding of the trial judge in this regard.
We affirm the judgment of the trial court and tax the cost of this appeal to the defendant.
________________________________ John K. Byers, Senior Judge
CONCUR:
________________________________ Janice Holder, Justice
________________________________ John R. McCarroll, Special Judge
AFFIRMED.
JUDGMENT ORDER
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by Appellant, and surety, for which execution may issue if necessary.
IT IS SO ORDERED this 5th day of January, 1999.
PER CURIAM