Opinion
No. M2002-00759-WC-R3-CV.
Filed May 5, 2003.
Direct Appeal from the Circuit Court for Maury County; No. 8644; Robert L. Jones, Judge.
Affirmed.
Ann Buntin Steiner, Nashville, Tennessee, for the appellant, Debby M. Lavender.
Thomas H. Peebles and Terrence O. Reed, Columbia, Tennessee for the appellee, Saturn Corporation.
John K. Byers, Sr. J., delivered the opinion of the court, in which Adolpho A. Birch, Jr., J., and Joe C. Loser, Jr., Sp. J., joined.
MEMORANDUM OPINION
The trial court found the plaintiff had failed to show that she sustained any permanent disability as a result of an injury by accident arising out of and in the course of her employment with the defendant. The plaintiff appeals from the trial court judgment and says the trial court finding was erroneous, and says also that the trial judge should have recused himself because one of the physicians who testified in the case was treating the trial judge's wife. We affirm the judgment of the trial court.
The plaintiff was paid $14,726.25 for temporary total disability during her absence from work.
On April 2, 1998, the plaintiff stepped down from a tow motor she was operating and injured her left foot. As a result of this injury, the plaintiff was seen by various medical personnel and was treated as a result of the injury primarily by Dr. Ronald G. Derr, a doctor of osteopathy, and on a lesser basis by Dr. Jama E. Rodgers, a podiatrist. The plaintiff was also seen by Dr. Marion C. Harper, an orthopedic surgeon, and by Dr. David S. Knapp, a rheumatologist. In addition to the reports of these doctors, various reports were introduced at trial from other physicians who had seen the plaintiff.
At the time of trial the plaintiff, who had divorced after the injury, was using her maiden name — Roguemore.
A reading of the depositions and review of the medical records clearly shows that the plaintiff sustained a mid-foot sprain of the left foot as a result of the April 2, 1998 accident. The treatment for this injury resolved the injury and the plaintiff sustained no permanent disability as a result of this sprain.
The records also show that subsequent to the resolution of the sprain the plaintiff began to have difficulty with her ankle and "back foot." All of the physicians who testified were of the opinion the plaintiff suffered from an inflammatory problem in her ankle but all of the physicians, with the exception of Dr. Derr, were of the opinion this had no connection to the April 2, 1998 injury.
Dr. Derr was of the opinion the left foot sprain (and the placing of the plaintiff in a boot for treatment of the sprain) aggravated, precipitated, or advanced the inflammatory problem in the plaintiff's left ankle and back foot. The other physicians testified the left foot sprain and use of the boot did not cause or aggravate the plaintiff's inflammation or tendinitis in her ankle.
The record further shows the plaintiff had a similar problem with her right foot in 1994, which was not caused by an injury.
The medical condition which the plaintiff avers was caused by the April 2, 1998 accident requires expert testimony to establish causation.Thomas v. Aetna Life Casualty Co., 812 S.W.2d 278 (Tenn. 1991). In determining causation, the trial judge has the discretion to accept the opinion of one or more experts' testimony over that of others or another.Kellerman v. Food Lion Inc., 929 S.W.2d 333 (Tenn. 1996).
We may make an independent assessment of the medical proof which is submitted by depositions, reports or records. Cooper v. INA, 884 S.W.2d 446 (Tenn. 1994). We do not, however, disagree with the discretion exercised by the trial judge in this regard unless the record clearly shows an abuse of this discretion.
We have reviewed the expert testimony in this case and find no reason to disagree with the trial judge's finding.
The plaintiff contends the trial judge should have recused himself from trying this case because Dr. Knapp was treating the wife of the trial judge.
Whether a trial judge should recuse himself from trying a case on a suggestion of apparent bias is within his discretion, and unless the record shows a trial judge has abused this discretion by not recusing himself, the decision will not be reversed on appeal. Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 564 (Tenn. 2001).
In this case, Dr. Knapp was not the only physician who testified the April 2, 1998 injury did not cause the plaintiff's ankle problem. Dr. Harper and Dr. Rodgers both reached the same conclusion. If one excluded the testimony of Dr. Knapp — which we do not do — the evidence would still preponderate in favor of the trial judge's judgment.
We affirm the judgment and tax the costs of this appeal to the plaintiff.
JUDGMENT
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 the plaintiff, Debby M. Lavender, for which execution may issue if necessary.