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Kelly v. Lay6/16/2005
ificant muscle guarding. . .observed at the time of the examination. . . ." Dr. Boals observed significant muscle guarding on his evaluation. In Dr. Sorensen's medical records is the statement that one of Mr. Kelly's goals is to "eliminate muscle guarding and tenderness . . . .";
or
(2B) ". . .asymmetric loss of range of motion. . . ." Dr. Boals observed this during his examination;
or
(2C) ". . .non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings. . . ." Mr. Kelly complained of radicular pain at trial, to Dr. Sorensen, and to Dr. Boals. The X-rays and the MRI showed no objective findings for the radicular pain complaints.
The trial court found that Mr. Kelly testified truthfully. At a minimum, the following must be found to be true:
1. Mr. Kelly injured his back while pulling a float on December 1, 2000;
2. Mr. Kelly suffers from non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings;
The following could also be found to be true:
3. Mr. Kelly exhibited significant muscle guarding as found by Dr. Boals (and muscle guarding as found in Dr. Sorensen's medical records);
4. Mr. Kelly sustained an asymmetric loss of range of motion as found by Dr. Boals.
Based on these findings, Mr. Kelly meets the criteria found in the Table 15-3, DRE Lumbar Category II, AMA Guidelines, 5th Edition, which gives a 5% to 8% impairment of the whole person. Thus, it must be found that Mr. Kelly has sustained a permanent anatomical impairment, based on Table 15-3 of the AMA Guidelines, of 5% to 8% impairment to the whole person.
Vocational Disability
Mr. Kelly's vocational disability must now be determined.
In assessing the extent of an employee's vocational disability, the trial court may consider the employee's skills and training, education, age, local job opportunities, anatomical impairment rating, and her capacity to work at the kinds of employment available in her disabled condition. Further, the claimant's own assessment of her physical condition and resulting disabilities cannot be disregarded. The trial court is not bound to accept physicians' opinions regarding the extent of the plaintiff's disability, but should consider all the evidence, both expert and lay testimony, to decide the extent of an employee's disability. Walker v. Saturn Corp., 986 S.W.2d 204, 208 (1998) (citations omitted).
Mr. Kelly was 58 years old at the time of the trial. He has a high school education, has completed 3 years of college, and has attained an Associate Degree in Business Administration from a community college. He was employed 21 years at Frito Lay as a route salesman. Prior to his employment with Frito Lay, Mr. Kelly drove a dump truck for approximately 9 months, and was employed for a few days with the Board of Education. Based on Table 15-3 of the AMA Guidelines, 5th Edition, his anatomical impairment is 5% to 8%. In his present condition, Mr. Kelly is unable to work for Frito Lay, but he is able to preach at his church and administratively run his dump truck business. It is found that Mr. Kelly has sustained a 16% vocational disability to the body as a whole.
Medical Expenses
Mr. Kelly further contends that he is entitled to the payment of future medical expenses pursuant to Tennessee Code Annotated section 50-6-204. It is undisputed that Mr. Kelly was injured in the course and scope of his employment on December 1, 2000. Therefore, he is entitled to the payment of future medical benefits for medical expenses
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