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Bland v. American Freightways Corporation2/4/2003
ts a finding of causation, such an inference may nevertheless be drawn under the case law. Tindall v. Waring Park Assoc., 725 S.W.2d 935, 937 (Tenn. 1987). Not every injury by accident which occurs in the course of employment is compensable; it is only compensable if it also arises out of employment, but any reasonable doubt as to whether such an injury arises out of the employment should be resolved in favor of the employee. Reeser v. Yellow Freight System, Inc., 938 S.W.2d 690, 692 (Tenn. 1997). Dr. Cicala provided the required expert medical proof of causation and permanency.
The claimant's own testimony is that his problems followed the fall. Our independent examination of the record reveals no other acceptable explanation. The evidence thus fails to preponderate against the trial court's finding as to causation.
The appellant contends the claimant is judicially estopped from contending his disability was caused by his work related accident. Judicial estoppel, not favored in the law, prevents a litigant who has, under oath, asserted a position in former litigation from taking a contradictory position in later litigation. The record shows that, during the pendency of this case, the claimant filed a medical malpractice action against one of the treating physicians in this case, averring that his injuries were caused by the doctor's negligence. The action was later voluntarily dismissed. Judicial estoppel is inapplicable for several reasons. In particular, the Act expressly permits an injured worker to maintain, in addition to his or her workers' compensation claim, an action for damages against a third party tort feasor. Davis v. Alexsis, Inc., 2 S.W.3d 228, 229 (Tenn. Ct. App. 1999).
Finally, the appellant contends the trial court erred in awarding vocational disability benefits because there was no expert proof of vocational disability. While expert testimony may be used to establish vocational disability, it is not required; because vocational disability can be established by lay testimony. Perkins v. Enterprise Truck Lines, Inc., 896 S.W.2d 123, 127 (Tenn. 1995). In the present case, vocational disability was established by the claimant's own testimony.
The judgment is therefore affirmed. Costs are taxed to the appellant.
JUDGMENT ORDER
This case is before the Court upon 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 Memorandum Opinion of the Panel should be accepted and approved; 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 on appeal are taxed to the Appellant, American Freightways Corporation, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
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