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Ochoa v. Peterbilt Motor Co.3/11/2003
The employee or claimant, Mr. Ochoa, initiated this civil action to recover workers' compensation benefits for an allegedly work related injury by accident. The employer denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 40 percent to the body as a whole. The employer has appealed.
Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. ยง 50-6-225(e)(2) (2002 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. Wingert v. Government of Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995). The standard governing appellate review of findings of fact by a trial court requires the Special Workers' Compensation Appeals Panel to examine in depth a trial court's factual findings and conclusions. GAF Bldg. Materials v. George, 47 S.W.3d 430, 432 (Tenn. 2001). The trial court's findings with respect to credibility and weight of the evidence may generally be inferred from the manner in which the court resolves conflicts in the testimony and decides the case. Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d 57, 61 (Tenn. 2001). The extent of an injured worker 's vocational disability is a question of fact. Seals v. England/Corsair Upholstery Mfg., 984 S.W.2d 912, 915 (Tenn. 1999). Where the medical testimony in a workers' compensation case is presented by deposition, the reviewing court may make an independent assessment of the medical proof to determine where the preponderance of the proof lies. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn. 2002).
The claimant is approximately fifty years old and has a high school education. He has worked for the employer, Peterbilt, since 1993, following the loss of his previous employment because of a layoff. He has experience as a production worker . He first injured his low back in 1993 but continued working while receiving conservative medical care from Dr. Jack Miller, who found no permanent impairment and prescribed no permanent restrictions. He suffered another low back injury in 1995, for which he was treated by Dr. Robert Hoover. After four to six weeks of conservative care, Dr. Hoover released him to full duty with no permanent restrictions and a zero impairment rating. His claim was settled for $4,000.00, the functional equivalent of 2.33 percent permanent partial disability to the body as a whole, although an independent medical examiner, Dr. David Gaw, estimated his permanent medical impairment from the injury to be 10 percent to the whole person and prescribed lifting restrictions. The claimant returned to his regular job and was released from Dr. Hoover's care in early 1996.
In November 2000, the claimant was assigned to a job which required him to lift and install sheets of floor metal weighing twenty to forty pounds each and required him to spend much of his time in a bent over position. He complained of low back pain but received no sympathy from the employer. On December 4, 2000, while so working, he felt a pop in his lower back and a burning sensation in his low back and legs, primarily his left leg. When he reported the injury to the employer, he was assigned to a different job, drilling holes in heavy sheet metal. He continued to have pain in his low back and legs. His request to be sent to a doctor was denied by the employer's workers' compensation administrator.
He visited Dr. Robert Landsberg and continued trying to work until the doctor prescribed restrictions. He has not worked
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