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Davis v. U.S. Coal Inc.9/12/2000
Mailed - August 2, 2000
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 appellant-employer appealed the trial court's ruling awarding appellee- employee 32% permanent partial disability to the body as a whole. Appellant argues the trial court was in error in accepting certain medical testimony when the doctor failed to follow AMA Guides in conducting examination and evaluation of employee. Judgment of the trial court is affirmed.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed.
Thayer, Sp. J., delivered the opinion of the court, in which Anderson, C. J., and Byers, Sr. J., joined.
OPINION
Facts
The trial court awarded the employee, Theodore Davis, 32% permanent partial disability benefits to the body as a whole as a result of a work-related accident. The employer, U. S. Coal, Inc., has appealed.
The employee was 53 years of age and had an 8th grade education. He has no vocational training and most of his work experience has been in the coal or construction industry. He also has some experience as a school bus driver.
On February 20, 1997, he was employed as a truck driver and was injured while working with a shovel removing waste from a pit. He was off work two days and then continued working until June 1997 when a doctor excused him from work for about one month. He then worked until January 1998 when a general layoff occurred affecting several workers including employee Davis. Since the layoff, he has not worked anywhere and contends he is not able to work at jobs he is qualified for.
He has been treated conservatively with medicine and recommendations for therapy. He told the trial court he was still having low back pain which went down his left leg into his heel. He has been seen by numerous doctors and all of the expert medical evidence by deposition was from doctors who performed independent medical examinations.
Dr. William E. Kennedy, an orthopedic surgeon, testified by deposition and first saw the employee during September 1998; he viewed numerous records of various doctors, examined results from different tests, and after conducting a physical examination concluded that he had degenerative disc disease with probable nerve root irritation L5 on the left; that the work-related incident caused and injury to his pre- existing condition which resulted in a 13% medical impairment; and he recommended restrictions of not lifting over twenty-five pounds occasionally or seven pounds frequently and he should avoid repeated bending, stooping or squatting activities.
Dr. J. Samuel Marcy, an orthopedic surgeon, testified by deposition and stated he first saw the employee during October 1997; he was of the opinion he had a chronic lumbar strain; that initially, he felt he should not lift over fifty pounds occasionally or over twenty-five pounds frequently and should avoid repetitive bending. He said that upon seeing him at a later date and observing heavy calluses on his hands with grease or engine oil stains, this was inconsistent with his testimony he was not able to do any work; and that he changed his initial opinion about restrictions and said he could do almost any type of work except heavy stressful activities. He also stated he was of the opinion he had recovered from the back strain and had no medical impairment.
Dr. Gilbert L. Hyde, an orthopedic surgeon, testified by deposit
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