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Jones v. ITT Hartford Insurance Co.12/3/1999
AFFIRMED
OPINION
This worker's compensation appeal has been referred to the Special Workers Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e) for hearing and reporting to the Supreme Court of findings of fact and Conclusions of law. This case arose from a work-related back injury . Based upon the evidence presented at trial, the trial court found that the plaintiff was entitled to an award of 60 percent permanent partial disability to the body as a whole plus additional future medical benefits as provided by statute. This award was based on a finding that the plaintiff proved by clear and convincing evidence that he met three of the four criteria in Tennessee Code Annotated § 50-6-242 to justify an award above the caps in § 50-6-241(a)(1) and (b).
The defendant submits the following issues for our review:
1. Whether the trial court erred in finding that the plaintiff is entitled to an award under Tennessee Code Annotated § 50-6-242 of greater than the maximum award under Tennessee Code Annotated § 50-6-241(a)(1)?
2. Whether the trial court erred in allowing Dr. Greg Cates to testify about the criteria in Tennessee Code Annotated § 50-6-242 when discovery responses filed by the plaintiff did not state those opinions?
Review of the findings of fact made by the trial court is de novo upon the record accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1990). The application of this standard requires this court to weigh in depth the factual findings and Conclusions of the trial court in a worker's compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). However, considerable deference must be given to the trial court, who has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved. Jones v. Hartford Accident & Indem. Co., 811 S.W.2d 516, 521 (Tenn. 1991).
After careful review of the record, we must affirm the trial court.
EVIDENTIARY FACTS
The plaintiff is a 23 year old resident of Parkin, Arkansas. He completed the 8th grade but has failed to obtain a GED and does not read well. The plaintiff has no formal job training and has primarily worked as a sandblaster in commercial painting jobs, the same type of position he held with defendant, M & D Coatings, at the time of his injury . The plaintiff described his job duties as requiring him to hold a two and one-half to three inch diameter hose equipped with a two inch hose "whip" and a nozzle between his legs and over his shoulder. The hose contained sand that was expelled from the hose under one hundred to one hundred forty pounds of pressure in order to sandblast paint off of steel. On August 25, 1996, the plaintiff was performing his sandblasting duties in a scaffolding basket, known as a "spyder," about 60 feet off the ground on the side of a grain tank. The basket became entangled in a cable protruding from the side of the tank. As the plaintiff was attempting to free the basket from the cables, he severely injured his back. The pain was so severe that he fell to his knees and was unable to straighten up.
The plaintiff testified he sought medical treatment from Dr. Anthony Segal, a neurologist, in September, 1996. After conservative treatment, Dr. Segal performed surgery on the plaintiff's back on December 16, 1996. Subsequently, the plaintiff under- went weeks of physical therapy. The plaintiff testified that Dr. Segal permitt
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