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Bland v. American Freightways Corporation2/4/2003
The employee or claimant, Mr. Bland, initiated this civil action to recover workers' compensation benefits for an injury that occurred in the course of his employment with the employer, American Freightways. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 30 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). 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, 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, 177 (Tenn. 1999). 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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 980 S.W.2d 365, 367 (Tenn. 1998).
The claimant is forty-two years old with a high school education and experience as a truck driver and loader. Prior to September 8, 1997, he was in good health. On that day, he was dispatched by the employer from Memphis to Willamette Industries in West Memphis, Arkansas, where he backed his trailer to an unloading dock to unload cargo. As he was preparing to unload, an employee of Willamette released the dock plate. The plate struck him in the right shin, knocking him down, injuring his lower back and right leg. After returning to Memphis, he received first aid at an emergency room and was referred to Dr. Tom Morris, an orthopedic surgeon.
Dr. Morris prescribed a Bledsoe boot, crutches and elevation of the right foot for a month, followed by therapy. The claimant wore the boot, as prescribed, for a period of months, removing it only for physical therapy and sleep. It caused him to walk with an abnormal gait. When his pain persisted, the claimant was referred to another orthopedist, Dr. Riley Jones. The claimant was unable to establish rapport with Dr. Jones. He returned to Dr. Morris. The employer's case manager referred him to Dr. Dean Jameson, another orthopedist. Dr. Jameson prescribed physical therapy and nerve blocks. The claimant was referred to Dr. Phillip Green, an anesthesiologist, who administered nerve blocks, which did
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