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Taylor v. Senior Citizens Services8/1/2000
mitted.
V. Whether Dr. Howser's evidentiary deposition fee should be considered as a cost of the case pursuant to Tenn. Code Annotated § 50-6-226(c)(1) and charged against Senior Citizens Services and Hartford Insurance Co.
Tennessee Code Annotated § 50-6-226 (c)(1) provides:
The fees charged to the claimant by the treating physician or a specialist to whom the employee was referred for giving testimony by oral deposition relative to the claim, shall, unless the interests of justice require otherwise, be considered a part of the costs of the case, to be charged against the employer when the employee is the prevailing party. Tennessee Code Annotated § 50-6-226(c)(1).
The trial court found that the bills associated with Dr. Howser's treatment of Ms. Taylor for her back "were not compensable as they were unauthorized and the plaintiff did not seek further treatment from Senior Citizens Services." The trial court stated in its ruling from the bench that "based on that same rationale, that I would not order that the Defendant pay for Doctor Howser's deposition either."
Appellate courts are generally disinclined to interfere with a trial court's decision in assessing costs unless there is a clear abuse of discretion. Perdue v. Green Branch Mining Co., 837 S.W.2d 56 (Tenn. 1992).
It is our opinion that the trial court did not abuse its discretion in denying the fee for Dr. Howser's deposition even though Ms. Taylor was the prevailing party on the issue of permanent partial disability for her back injury .
This issue is without merit.
VI. Whether the trial court erred when it ruled that Ms. Taylor suffered a ten percent (10%) permanent partial disability to the body as a whole for her alleged back injury when neither the treating nor evaluating physician gave Ms. Taylor any anatomical impairment?
In Hill v. Royal Insurance Co., 937 S.W.2d 873 (Tenn. 1996), the Supreme Court upheld an award of permanent partial disability based on permanent restrictions despite the fact that the physician did not assign any anatomical impairment rating to the plaintiff in that case.
An anatomical impairment rating is not always indispensable to a trial court's finding of a permanent vocational impairment; anatomical impairment is distinct from the ultimate issue of vocational disability, and a medical expert's characterization of a condition as "chronic" and the placement of permanent medical restrictions is sufficient to prove that the condition was permanent. Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998) (citing Hill v. Royal Ins. Co., 937 S.W.2d 873, 876 (Tenn. 1996)).
In Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d at 452 (Tenn 1988), the Supreme Court stated:
he ultimate issue is not the extent of anatomical disability but that of vocational disability, the percentage of which does not definitely depend on the medical proof regarding a percentage of anatomical disability. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d at 457.
An employer takes an employee as he finds him and assumes the risk of having a pre-existing condition aggravated or accelerated by his employment. Hill v. Eagle Bend Manufacturing, Inc., 942 S.W.2d 483, 488 (Tenn. 1997).
To be compensable, the pre-existing condition must be advanced or there must be anatomical change in the pre-existing condition, or the employment must cause an actual progression of the underlying disease. Sweat v. Superior Industries, Inc., 966 S.W.2d 31, 32 (Tenn. 1998).
In Griffin v. Memphis Community Television Foundation, 748 S.W.2d 87 (Tenn. 1988), the Supreme Court upheld
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