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Lemmons v. P & P Enterprises2/20/2002
Mailed - January 16, 2002
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the finding of the trial court that she failed to carry her burden of proof that her injuries arose out of and in the course of her employment. We affirm the judgment of the trial court.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Robertson County Circuit Court is Affirmed.
Howell N. Peoples, Sp. J., delivered the opinion of the court, in which Adolpho A. Birch, Jr., Justice, and William H. Inman, Sr. J., joined.
MEMORANDUM OPINION
FACTS
Angela Lemmons Ortega, hereafter "plaintiff," worked for P & P Enterprises, LLC at Lee's Kitchen in Springfield, Tennessee on September 12, 1997 when she slipped on a rug and fell on her back. A co-employee took her to the emergency room where she was treated and released. She returned to work but quit in November for reasons unrelated to her injury. She subsequently worked for Junior's Food Mart, and then, Caroline's doing a job that involved sewing and picking up boxes of pillows. In addition, she also worked about 20 hours a week as a sitter with a physically disabled individual. She testified that part of her duties as a sitter involved changing the diaper of the gentleman who was not able to walk, and that she did that job until sometime in 1998 "(w)hen I started having my problems with my back and legs." On August 13, 1998, she went to see Dr. Robert G. Ferland, a family physician. She reported the remote fall in 1997 to him. Dr. Ferland testified that he billed her group health care because "I didn't think this was necessarily work-related." Dr. Ferland opined that trauma had caused the back condition he saw on the M.R.I. performed on plaintiff's back.. He testified the trauma would have occurred at least six months prior to the M.R.I. and "could have been one, two, three years, could have been ten years. You just can't tell by the M.R.I." The medical report of Thomas J. O'Brien, M.D. was admitted into evidence by stipulation. Dr. O'Brien performed a physical examination on plaintiff and reviewed the records of Dr. Ferland. He concluded that she had a minor soft tissue injury that resulted in no permanent impairment. The trial court found that plaintiff had failed to establish, by expert medical proof, that she suffered a permanent injury and that the permanent injury was work-related.
STANDARD OF REVIEW
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 depth the factual findings and conclusions of the trial courts in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Conclusions of law are subject to de novo review with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997). When the medical testimony is presented by deposition or on written reports, as it was in this case, this Court is able to make its own independent assessment of the medical proof to determine where the preponderance of the evidence lies. Cooper v. INA, 884 S.W.2d 446, 451 (Tenn. 1994).
ISSUE
The determinative issue of this appeal is whether the plaintiff carried her burd
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