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Bohannon v. Asplundh Tree Expert Co.3/4/1999
AFFIRMED
This Worker's Compensation Appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. ยง 50-6-225 (e) (3) for hearing and reporting to the Supreme Court of findings of fact and Conclusions of law.
The employee alleged injury to his neck and upper torso when on January 30, 1993 he was getting off of a bush hog, while working for his employer whose primary business is tree-trimming, and he slipped on some oil. The employee states he attempted to break his fall by grabbing hold of the tractor before falling several feet and landing on his low back. The trial court found that the plaintiff suffered a "severe fall" and resulting injury but that the disability is "highly exaggerated" by the plaintiff. Taking all the evidence in consideration, the trial Court awarded judgment in the amount of twenty-five percent disability to the body as a whole and medical expenses. Both parties have appealed the judgment of the trial court. The employer contends that the trial court erred in awarding permanent partial disability as a result of the alleged accidental injury. The plaintiff's issue on appeal is whether the evidence preponderates in favor of a finding of much more occupational disability than the twenty-five percent awarded by the trial court.
Plaintiff was twenty-nine years of age and is a high school graduate. He had 316 hours of vocational training and has no trouble reading, writing, or performing mathematics. Plaintiff's work history, during the ten years since graduation from high school, was sporadic in that plaintiff seldom held a job for more than a few months and had trouble getting along with co-workers. Plaintiff testified that he had not worked since the day of the alleged accident nor had he submitted an application for employment since his injury.
On January 30, 1993, the plaintiff was a foreman for the defendant and in that capacity he ran a bush hog and had gone into an area where he had not bush hogged before. Plaintiff testified that as he was getting off the tractor to check for rocks, tires, and debris, his feet flew out from under him whereupon he grabbed and tried to break his fall but landed on his buttocks. He testified he had never had an injury to his neck or upper back nor had he had any physical restrictions placed on him as to his ability to lift, bend, stoop, twist, or performed heavy work which was the only type of work he had done. The plaintiff was taken to the emergency room and after being treated, he was referred to Dr. Paul Schwiger, an orthopedic surgeon.
Dr. Schwiger first saw the plaintiff on February 10th and 16th, 1993 and found that the plaintiff's neck motion was extremely limited and that he was tender in his cervical and thoracic spine. Dr. Schwiger diagnosed a musculo-skeletal injury. MRIs showed a central right disc protrusion at T 6-7 and a bulging disc at T 11-12. Dr. Schwiger referred the plaintiff to Dr. Stephen Sanders, a neuro surgeon.
Dr. Sanders first saw the plaintiff on February 24, 1993 and upon examination found a decreased range of motion in the neck, a decrease sensation to pin prick at the left C 7 and 8, decrease biceps reflex and small disc protrusion at the T 6-7 on the MRI. X-ray studies forwarded to Dr. Sanders contained a statement reflecting evidence of cervical spasm causing mild scoliotic curvature of the spine. As a result of plaintiff's examination showing some sensory defects bilaterally while his shoulder x-rays and cervical and lumbar spine films showed no evidence of abnormalities, due to plaintiff's complaints of severe neck discomfort and shoulder girdle disfunction, he was referr
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