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Kotouc v. Star Knitwear Inc.3/18/1999
AFFIRMED.
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 injured his left arm in an industrial accident on August 4, 1995. He was treated by Neil H. Spitalny, orthopedic surgeon, who diagnosed the problem as a partial biceps muscle tear. Conservative treatment was recommended, which essentially involved brief immobility of the arm. Further treatment was indicated because the plaintiff continued to complain of pain on rotation of his arm. Examinations by other specialists convinced Dr. Spitalny that the plaintiff was suffering from a compression of an ulnar nerve, for the correction of which he performed a surgical release on August 27, 1996.
The surgical procedure was only partially successful. The plaintiff continued to experience pain caused by contractions of muscle, with some discomfort attributable to a cervical problem unrelated to the August 4, 1995 problem. He reached maximum medical improvement on February 7, 1997, with a medical impairment rating of ten percent to his arm.
The Chancellor found that the plaintiff had a disability "within the meaning of the workers' compensation law" of 75 percent to his left arm. The employer appeals, insisting that the award of 7.5 times the impairment rating is excessive and is not supported by the proof. Employer also complains that the Chancellor found that Dr. Spitalny did not correctly interpret the AMA Guidelines and relied upon his personal analysis of the Guidelines.
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).
The Chancellor commented that Dr. Spitalny testified that he did not use a "dynamometer to make his measurements as far as loss of strength, loss of use, which are the Guidelines called for." There was no elaboration by the Chancellor, and no indication, that we are able to discern, that the Chancellor believed Dr. Spitalny's assessment would have been higher had he used the dynamometer. The employer argues that the use or non-use of a dynamometer requires expert testimony and that the Chancellor improperly injected his personal views into the issue of anatomical impairment. This argument would focus our attention, see, Fuller v. Speight, 571 S.W.2d 840 (Tenn. App. 1978), but we find nothing in the record which indicates that the obviously high disability rating awarded by the Chancellor was based on his personal views of the Guidelines.
The appellant next complains of the undue attribution of credibility to the plaintiff, who was 59 years old at the time of trial and a high school graduate, with a work history of truck driving and various jobs essentially involving heavy labor. He drove a truck for 25 years and quit because he was "partially night blind." He worked for Wilbert Vault Company and quit because of "the weather." He began working for Star Knitwear in 1989 and worked for about six years before his described accident. He testified that he cannot now raise his left arm above his head, and "has problems carrying weight."
Following his release by Dr. Spitalny, he returned to work at Star, but quit because he was unable to do the job. He then secured employment at a Sears Store, then at American Manufacturing, then at Koch Foods as a
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