Kerry Alan Napier v. Cincinnati Casualty Insurance Company and North Central Telephone Cooperative

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issue in this case is whether the award of 75 percent disability to the plaintiff's right hand is in accord with the preponderance of proof. Appellate review is confined to a review de novo on the record, accompanied by a presumption that the trial judge's findings of fact are correct unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2). A concomitant rule is that we are as enabled as the trial judge to judge the probative worth of depositional testimony. Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). The plaintiff's job with the telephone company was that of a cable splicer and repairman. During the course of his employment, he sustained a laceration to the extensor tendon of his right hand, on October 25, 1994, involving the index, middle and ring fingers, which was repaired by Dr. Keith Morrison, an orthopedic surgeon in Bowling Green, Kentucky, under whose care he remained until February 22, 1995. On that date, Dr. Morrison noted: Mr. Napier is now 4 months status post extensor tendon repair on his right hand. Four tendons repaired to the index finger, slips to the middle and ring finger on the right hand. His EXAM today shows some improvement. He still lacks full extension on the index finger by about 2dg when his wrist is brought into extension. With the wrist in the flexed position, he has full extension of the hand. He has full flexion of all the digits with his only limitation being the lack of full extension on the index finger with his wrist in the above mentioned extension position. They would like to get a second opinion for insurance reasons so we are going to see him back in 1 month. At that time he will be 5 months out. I recommend tenolysis exploration. If he is still dissatisfied with the result. Overall, he has made a big improvement, having had no active extension of the fingers on repair. He remains neurovascularly intact. Otherwise, no loss of sensation. The plaintiff was later seen, on March 15, 1995 by Dr. Stephen Pratt, a specialist in reconstructive hand surgery, because of a 3 degree lag in the index finger. Further tendon repairs were undertaken to correct the lag. Dr. Pratt testified 2