Frances Reynolds Kellerman v. Food Lion, Inc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends (1) the chancellor erred in not accepting the opinion testimony ofthe claimant's treating physician, (2) the claimant's back injury is not compensable because the evidence failed to establish that "the accident either otherwise injured her or advanced the severity of her preexisting condition, (3) that the chancellor erred in considering expert medical testimony not based on reasonable medical certainty, and (4) the award of permanent partial disability benefits is excessive. The panel concludes that the evidence fails to preponderate against the findings of the trial court. The judgment is modified as provided herein. On November 29, 1993, the claimant, Kellerman, slipped and fell in a puddle of water at work, twisting her right knee and injuring her back. She was eventually referred to Dr. Richard Bagby, who saw her on January 13, 1994 and January 2, 1994. Dr. Bagby ordered a CT scan and studied the results. He opined that the claimant reached maximum medical improvement on January 24, 1994, when she was released to return to work with some minor restrictions. The doctor further opined that she would not retain any permanent impairment. We do not find in the record the degree of certainty upon which the doctor's opinion was based. The claimant returned to Dr. Bagby on March 1, 1994, when he noted her continuing pain but did not change her restrictions from lifting more than twenty pounds or any repetitive bending, or assess any permanent impairment. The claimant was referred to Dr. Keith Brown for examination and evaluation. Dr. Brown performed additional testing which put stress on her knee and back. From his examination, particularly a positive McMurray's test, this doctor diagnosed a torn medial meniscus in the right knee joint, which, if not treated, will worsen, he said. He assigned a permanent impairment rating of five percent to the right leg, using AMA Guidelines, and added restriction from any kneeling or stooping activities. Dr. Brown further opined that the claimant's disabling back pain was permanent and causally related to the injury at work. He diagnosed circumferential disc disorder which, he said, may or may not have preexisted that injury but was aggravated by the injury, and assigned an additional permanent impairment of ten percent to the whole person, from AMA Guidelines. His testimony included the following question and answer: Q. In the opinions you have expressed, have they been based on a reasonable degree of medical certainty? 2