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Webb v. Shoe City9/20/2000
had the opportunity to talk to her about the assistant manager position. The restrictions that Drs. Friedman and Dawoud gave the plaintiff would have allowed her to do the assistant manager position as described by Mr. Bowser at trial.
Therefore, we find that the evidence preponderates against the trial court's judgment that the plaintiff did not have a meaningful return to work. The plaintiff's award is limited to two and one-half (2.5) times the anatomical rating.
PERCENT DISABILITY
It is well-established that the plaintiff in a workers' compensation case has the burden of proving causation and permanency of his injury by the preponderance of the evidence using expert medical testimony. See Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991); Roark v. Liberty Mutual Ins. Co., 793 S.W.2d 932, 934 (Tenn. 1990). However, such testimony is not evaluated in total isolation but must be considered in conjunction with the employee's testimony as to how his injury occurred and his subsequent physical condition. Thomas, 812 S.W.2d at 283. In determining where the preponderance of the evidence lies, this Court may choose which expert's view to believe among differing opinions and may consider the experts' qualifications, circumstances of their examination, what information was available to them, and how important that information was to other experts. See Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).
Upon our de novo review, we find that the evidence does not preponderate against the trial court's findings that the plaintiff sustained a 15 percent medical impairment rating. Her treating surgeon rated her with only a 9 percent disability rating under the AMA Guides, but he did not take into account any aggravation of the osteoarthritic condition that was connected to the injury in varying degrees by Dr. McGee and Dr. Dawoud. The trial court apparently credited the plaintiff's own evaluating physician, Dr. Dawoud's, rating of 15 percent as the most reliable, and we have no reason to disagree. Taking into account the plaintiff's level of education, skills, age, and other relevant factors, we find that she is entitled to the maximum two and one-half (2.5) multiplier pursuant to § 50-6-241(a)(1). We, therefore, modify the trial court's judgment and find that the plaintiff sustained a 37.5 percent permanent partial disability to the body as a whole.
CONCLUSION
For the above reasons, we find that the two and one-half (2.5) times cap does apply. We modify the trial court's judgment and find that the plaintiff sustained a 37.5 percent permanent partial disability to the body as a whole. This case is remanded to the trial court for disposition consistent with this opinion. As modified, the judgment of the trial court is affirmed.
Costs will be shared equally between the plaintiff and defendants.
ORDER
This case is before the Court upon motion for review of Ernestyne M. Webb pursuant to Tenn. Code Ann. § 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 equally between the plaintiff and the defendants, for which execution may issue i
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