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Carter v. Kenneth O. Lester Co.3/2/2001
Mailed - January 30, 2001
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. In this appeal, the employer insists the trial court erred in accrediting the testimony of an examining physician over that of the treating physician and by exceeding the multiplier applicable in cases where the employee returns to work at the same or greater wage. As discussed below, the panel has concluded the judgment should be affirmed.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed
Joe C. Loser, Jr., Sp . J., delivered the opinion of the court, in which Adolpho A. Birch,Jr., J. and Howell N. Peoples, Sp. J., joined.
MEMORANDUM OPINION
The employee or claimant is 57 years old with a GED, limited intellectual capacity and experience as a truck driver and police officer. He had rehabilitated himself from a previous back
injury when, on August 29, 1995, while working for the employer, Kenneth O. Lester Company, as a truck driver, he became entangled in a shrink wrap and injured his back. He was referred to Dr. Larry Laughlin, who examined him briefly and returned him to work.
Dr. Arthur Cushman, who treated the claimant following the prior back injury , also examined him following the August 29, 1995 injury and guessed his impairment to be 10 percent from the first injury and none from the second injury. Dr. Robert Landsman examined the claimant following the second injury and estimated his impairment at 23 percent to the body as a whole, of which 14 percent resulted from the second accident. By his own testimony, the claimant had fully recovered from the first injury and passed a physical examination before going to work for the employer. In February 1996, the claimant suffered an unrelated arm injury and, because he was no longer able to drive a truck, he was assigned to another lower paying job .
From the above summarized evidence, the trial court awarded, inter alia, permanent partial disability benefits based on 4 times 14 percent or 56 percent to the body as a whole. 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. § 50-6-225(e)(2). This standard requires the panel to examine in depth a trial court's factual findings and conclusions. The reviewing court is not bound by a trial court's factual findings but instead conducts an independent examination to determine where the preponderance of the evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584 (Tenn. 1991).
The appellant contends Dr. Cushman was in the best position to evaluate the employee's permanent impairment, because he treated him following the first injury, and that it was thus error for the trial court to accept the opinion of Dr. Landsman instead of Dr. Cushman. Dr. Cushman's opinion, however, is difficult to accept in light of the claimant's own testimony, which the trial judge found to be credible. Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, Story v. Legion Ins. Co., 3 SW.3d 450 (Tenn. 1999), because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173 (Tenn
Page 1 2 3 Tennessee Personal Injury Attorneys
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