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Montgomery v. Wal-Mart Stores6/25/2002
This civil action was commenced by the employee or claimant, Darin Montgomery, seeking workers' compensation benefits for an alleged injury by accident arising out of and in the course of his employment with Wal-Mart Stores. The employer admitted the existence of an employer-employee relationship at all material times, but otherwise denied every material allegation of the complaint. The case was tried on May 23, 2001. The trial court resolved the issues in favor of the claimant. The employer has appealed.
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. ยง 50-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. Wingert v. Government of Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 980 S.W.2d 365, 367 (Tenn. 1998). Issues of statutory construction are solely questions of law. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2000). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The trial court's findings with respect to credibility and weight of the evidence may generally be inferred from the manner in which the court resolves conflicts in the testimony and decides the case. Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d 57, 61 (Tenn. 2001).
The claimant is thirty-three years old and has a bachelor's degree in management. He has worked for the employer since his graduation from college in 1992. By August 26, 1996, at age twenty-eight, he had doubled his salary and become an effective manager. On that day, he injured his right knee while pulling a pallet across a concrete floor. Three days later, he saw an employer approved physician, Dr. Henry Jao, who diagnosed derangement of the knee with possible meniscal damage. He continued to work against the advice of Dr. Jao. When the pain and other problems persisted, arthroscopic surgery was performed on June 23, 1997 by Dr. Jao. Surgery did not help. The claimant returned to work around the end of July 1977, but continued to experience tiredness, excruciating pain and swelling in the injured leg. His claimed lack of energy was corroborated by a co-worker.
The demands of his job made his pain worse, forcing him to leave his employment at Wal-Mart in February 1998, but continued seeing Dr. Jao. In April 1998, Dr. Jao released him with an estimated permanent impairment rating of 10 percent to the right lower extremity. When the pain persisted, the claimant visited Dr. Alan S. Henson. Dr. Henson diagnosed Reflex Sympathetic Dystrophy (RSD), secondary to torn medial and lateral menisci, patellar chondroplasty and excision of the synovial plica during arthroscopic surgery. Dr. Henson estimated the claimant's permanent impairment to be 12 percent to the right lower extremity and suggested he have a second magnetic resonance imaging test and referred him to Dr. Kenneth E. Bartholomew, a chronic pain specialist. The MRI revealed moderate effusion and a questionable tear of the anterior cruciate ligament.
Dr. Bartholomew prescribed a series of six lumbar epidural sympathetic
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