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Parsons v. W.T. Warren Distributing3/23/1999
REVERSED and REMANDED
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 Judge found the plaintiff could not recover in this case because the medical evidence showed the plaintiff had suffered only an increase in pain from a pre-existing degenerative disc disease.
The trial Judge found the plaintiff had suffered a 30 percent vocational disability if he were entitled to recover.
We find the evidence preponderates in favor of the plaintiff. We reverse the judgment which dismisses the case and find the plaintiff is entitled to an award of 30 percent vocational disability as found by the trial Judge.
The plaintiff was age 35 at the time of the trial and has a high school education. He was primarily employed as a truck driver, a job he did for the defendant.
On January 15, 1997, the plaintiff was doing repair work on an office ceiling. When a small piece of dry-wall fell toward the plaintiff's head, he jerked his head backward and heard his neck "pop." Soon after the plaintiff began to suffer pain in his neck and he sought medical attention.
Dr. Robert Scott Davis, a neurosurgeon, became the plaintiff's treating physician. Dr. Davis testified the plaintiff had degenerative changes at the C6 and C7 levels in his spine, with stenosis. Dr. Davis ultimately did surgery on the plaintiff in an effort to relieve the pain the plaintiff was experiencing.
It is not necessary to go into minute detail concerning the medical findings.
Dr. Davis testified the accident at work did not cause the degenerative changes which the plaintiff has. He did, however, testify that the accident caused the pre-existing degenerative condition, which had been asymptomatic prior to the accident and then became symptomatic. Further, Dr. Davis testified the plaintiff may have never had a problem [pain] as a result of the pre-existing condition but for the accident. Dr. Davis found the plaintiff to have a five percent permanent partial disability to the body as a whole. He placed no work restrictions on the plaintiff.
Dr. Gilbert L. Hyde, an orthopedic surgeon who examined the plaintiff, testified the accident caused the plaintiff's pre-existing condition to become symptomatic. Dr. Hyde testified the plaintiff had an 18 percent medical impairment and suggested limitations on lifting, turning, etc.
The plaintiff testified he was unable to drive a truck as he had done before the accident because of the pain caused by driving a truck.
We find that the facts in this case warrant a judgment in favor of the plaintiff because they appear to meet the requirements of the rule set out by the Supreme Court in Talley v. Virginia Ins. Reciprocal, 775 S.W.2d 587 (Tenn. 1989), where the Court said: "There is not doubt that pain in considered a disabling injury, compensable when occurring as
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