Opinion
No. 01S01-9806-CH-00112.
Decided February 22, 1999.
LAWRENCE CHANCERY, HON. WILLIAM B. CAIN, CHANCELLOR
AFFIRMED and REMANDED
For the Appellant:
J. Daniel Freemon
For the Appellee:
Joe W. Henry, Jr.
Members of Panel:
Justice William M. Barker, Senior Judge William H. Inman, Special Judge Joe C. Loser, Jr.
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. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
The plaintiff alleged that during the course of her employment, on February 10, 1994, she injured her back while assisting a patient to move from a bed to a wheelchair and that she is entitled to benefits for permanent disability.
The defendant admitted the occurrence of the injury as alleged, agreed that the plaintiff was entitled to benefits for temporary total disability together with medical expenses, but denied the allegations of permanent impairment or disability.
The complaint was dismissed "as it related to any request or demand for permanent partial disability, past temporary total disability, and past medical expenses." The plaintiff appeals and presents for review the propriety of the finding that she failed to carry the burden of proving her allegation of permanent partial disability.
There are no issues of the plaintiff's entitlement to benefits for temporary total disability or medical expenses. The plaintiff alleges that the trial judge erred in refusing to credit the testimony of rehabilitation experts, and in allowing certain depositions to be introduced in violation of a local Rule.
Our 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 finding, 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).
Facts
The plaintiff is 27 years old, and a licensed practical nurse since 1990. On February 10, 1994, she injured her back while assisting a patient, and was referred to a general practitioner for treatment. She was then referred to a neurosurgeon, Dr. Weiss, who saw her one time, conducted an MRI, and told her she was "fine." Not liking this, she saw Dr. McCombs, who ordered another MRI, and thereafter was examined by Dr. Cushman. Three years elapsed between the date of her injury and the time of trial; she testified that her back pain persisted. She was terminated by the defendant in August, 1994, and shortly accepted a private pediatric position. From there she accepted a job with a community hospital as a floor nurse; from thence she worked for a general hospital, thence for a physician in Nashville, where she was employed at the time of trial. Each succeeding job apparently was an improvement over the predecessor job.
The Medical Proof
Dr. Paul McCombs, a neurosurgeon, testified that the plaintiff was referred to him by Dr. Matt Dobias, a general practitioner, "for the purpose of evaluating her for her back and bilateral lower extremity pain as a result of a work-related accident." He recommended conservative treatment, and "felt that she had injured her back." His diagnosis was vague, and he stated that the plaintiff's "symptoms waxed and waned." He testified that she had a five percent impairment, but declined to discuss the issue of whether the plaintiff was exaggerating her symptoms. He imposed lifting restrictions and recommended against various activities requiring unusual exertion.
Dr. Robert Weiss, a board-certified neurosurgeon, saw the plaintiff on two occasions in March and April, 1994. He ordered an MRI on the basis of which he determined that the plaintiff had a back sprain, with no evidence of a neurological disease. He found no impairment.
Dr. Arthur R. Cushman, a board-certified neurosurgeon, saw the plaintiff on July 8, 1994 for the purpose of evaluation. He testified that the plaintiff's complaint of back pain was "significantly exaggerated," according to his tests, and that she had no impairment.
Two rehabilitation consultants reported that the plaintiff "can no longer actively pursue camping, fishing, or boating with her family, and cannot engage in customary recreational play with her daughter," and must depend on her husband to perform household chores such as mopping and vacuuming. These consultants reported that the plaintiff's vocational disability rating was 42 percent, based upon the physical limitations imposed by Dr. McCombs.
The Video
A surveillance by videotape was made in September, 1996. The trial court observed that the plaintiff "walked without a limp, contrary to testimony, that her pace was brisk and that she had no trouble carrying what looked to be about a 16-months old child, and who had no difficulty bending, stooping, and walking while carrying the child." The appellant argues that "there is no expert proof that anything observed in the videotape was inconsistent with the restrictions, limitations or impairment rating given by Dr. McCombs." It is true that the videotape was apparently not shown to Dr. McCombs, and he was not questioned about the plaintiff's demonstrated agility, which was at odds with his pronouncements; but expert proof that the plaintiff's videotaped activities were consonant with her asserted physical complaints — even if adduced, which would be highly unlikely — cannot survive common sense.
The extension of the appellant's argument that the "conclusions of the trial judge absent expert testimony were inappropriate," is not persuasive, for another reason: the activities videotaped are a substantial refutation (1) of the plaintiff's testimony, (2) of the opinion of Dr. McCombs respecting what she can and cannot do, and thus the important factor of credibility is injected into the decision-making process. See: Wilder v. Wilder, 863 S.W.2d 707 (Tenn. 1992). Superimposed on all this, and contrary to the argument of the appellant that the trial judge essentially decided the case on the basis of the videotape, is the testimony of Dr. Cushman, who minced no words in testifying that the plaintiff was significantly exaggerating her back pain, as, indeed, the videotape rather graphically confirms. Then, too, is the testimony of Dr. Weiss, who was of the opinion that the plaintiff had no impairment.
The plaintiff was employed in 1996 and 1997 with no physical restrictions, and represented to the Community Hospital and the General Hospital that she could lift and carry 25 pounds without assistance, push and pull 125 pounds, and could stand, walk, bend and stoop frequently, contrary to her testimony. When confronted, she said that she lied to these employers.
The Vocational Assessment
The trial judge held that the vocational assessment was of no benefit, and declined to accept the factual basis relied upon by the rehabilitation counselors. They considered only the deposition of Dr. McCombs, made no effort to read the reports or the testimony of Drs. Weiss and Cushman, did no testing, and evidence of malingering seemingly was of little importance to them. We need not further elaborate the obvious conclusion that the trial judge was justified in refusing to credit the asserted vocational assessment.
The Admission of the Deposition
Rule 22 of the 22nd Judicial Circuit requires depositions to be filed 72 hours before trial, contrary to the action of the defendant, who filed the depositions of Drs. Cushman and Weiss on the day of trial. The appellant argues that the trial judge thus violated his own rule.
Rule 1.03 provides that any Rule may be suspended if justice so requires. The trial judge suspended Rule 22, and there the matter ends.
One issue remains. Both parties filed a motion for discretionary costs. These motions were not brought to the attention of the trial judge, and hence were not ruled on. We conclude that the case should be remanded for that purpose.
The judgment of the trial court is affirmed and the case is remanded for all appropriate purposes. Costs are assessed to the appellant. _______________________________ William H. Inman, Senior Judge
CONCUR: _______________________________ William M. Barker, Justice _______________________________ Joe C. Loser, Jr., Special Judge