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Alassaadi v. Davidson Transit Organization8/24/2005
ployee that he had a reasonable excuse for not consulting with his employer before incurring such expense. Harris v. Kroger Co., Inc., 567 S.W.2d 161, 163-4 (Tenn. 1978). The initial inquiry for the court is whether Mr. Alassaadi had a valid excuse for engaging the services of Dr. Alkayyali, Dr. Powell, and the other physicians without first consulting with Davidson Transit Organization. The trial court held he did not. While Mr. Alassaadi testified he complained to the director of maintenance that he had not seen a physician, he never related that complaint to the director of human resources. Moreover, there is evidence he refused to speak with and to return the telephone calls from the person handling his workers' compensation claim. The trial court apparently felt that if Mr. Alassaadi was not satisfied with the medical treatment he was receiving, he should have related that fact to one of these two individuals. He did not. The evidence does not preponderate against the finding of the trial court with regard to this issue.
The final issue presented for review by the appellant is, as we understand it, whether the trial court erred in limiting its award to Mr. Alassaadi for permanent partial disability to 5% of the body as a whole. We have independently evaluated the medical evidence in this case. We agree with the trial court that if Mr. Alassaadi sustained a permanent disability from this work injury, it is solely related to the pain he says he has experienced. The trial court expressly found that the problems revealed by the magnetic resonance imaging studies were more probably related to the aging process than an injury. We agree. The trial court personally observed Mr. Alassaadi's testimony and we must give deference to its evaluation of that testimony. The trial court apparently believed that Mr. Alassaadi experienced pain to the back, neck or shoulder and the onset of that pain resulted from the work related injury. The trial court obviously felt the extent of disability caused by the pain was minimal. Based primarily on the testimony of Dr. Roy Terry related to the lack of any evidence of atrophy, we do not find that the evidence preponderates against the trial court's finding as to the extent of Mr. Alassaadi's disability.
VI. CONCLUSION
Because we do not find the evidence preponderates against the trial judge's findings, the judgment of the trial court is affirmed. The costs of this cause are taxed to the appellant, Waed Alassaadi.
DONALD P. HARRIS, SR. J.
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, Waed Alassaadi, for which execution may issue if necessary.
IT IS SO ORDERED.
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