 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Becton v. Grisham Corp.11/14/2000
must not be so uncertain or speculative that assigning liability to the employer would be arbitrary or only a mere possibility. Livingston v. Shelby Williams Indus., Inc., 811 S.W.2d 511, 515 (Tenn. 1991) quoting Tindall v. Waring Park Ass'n., 725 S.W.2d 935, 937 (Tenn. 1987). Reasonable doubt of causation is to be construed in the employee's favor. Hill, 942 S.W.2d at 487.
Upon our de novo review, we find that the deposition of Dr. Feild was not objective and unbiased and does not preponderate against the chancellor's finding that it was unreliable and should be discounted. We may make our own independent assessment of the medical evidence when it is presented by deposition or written reports, as it is in this case. Cooper v. Insurance Co. of N. Am., 884 S.W.2d 446, 451 (Tenn. 1994); Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). In doing so, we should not ignore the conclusion reached by the trial judge upon the assessment of the conflicting medical opinions. We find that there is reason in the record to demonstrate the unreliability of the testimony and written reports of the examining physician.
REMAINING ARGUMENTS
The employee has the burden of proving every element of the case, including causation and permanency by a preponderance of the evidence. Tindall v. Waring Park Assn., 725 S.W.2d 935, 937 (Tenn. 1987). To be compensable under workers' compensation law, an injury must both "arise out of" as well as be "in the course of" employment. Although absolute certainty is not required to prove causation, the medical testimony connecting the injury with the work related activity must not be so uncertain or speculative that assigning liability to the employer would be arbitrary or only a mere possibility. Livingston v. Shelby Williams Indus., Inc., 811 S.W.2d 511, 515 (Tenn. 1991). Reasonable doubt of causation is to be construed in the employee's favor. The record is replete with inconsistencies as to when the accident occurred.
Upon our de novo review, we find that the evidence does not preponderate against the trial court's finding that the plaintiff did not show by a preponderance of the evidence that plaintiff suffered an injury by accident arising out of and in the scope of employer's employment and such accidental injury has caused substantial permanent physical impairment and vocational disability.
CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment.
Costs are assessed against the plaintiff.
ORDER
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. ยง 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the motion for review is not well taken and should be denied; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by James E. Becton, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
|