Ruthann Marie Rhoady v. Insurance Company of

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. In this appeal, the appellant insists the evidence preponderates against the trial court's findings (1) that the employee gave timely written notice of her injury and (2) that the injury occurred in the course and scope of employment. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the General Sessions Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary Melinda Little, McMinnville, Tennessee, for the appellants, Insurance Company of the State of Pennsylvania and Bridgestone/Firestone, Inc. Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruthann Marie Rhoady. MEMORANDUM OPINION The employee or claimant, Rhoady, is thirty-three years old with a tenth grade education, a general education diploma and experience as a laborer. She works for Bridgestone/Firestone, Inc. in tire production. She testified that on December 14, 1998, she began her shift at 7: p.m. During the early hours of the next day, she felt a sharp, low back pain while bending down to tape a heavy tire. She testified further that she first thought she had a kidney injury, but that the doctor ruled that out in January 1999. She continued working until January 13, 1999, when she filed a written report of the injury to the employer. Two board certified orthopedic surgeons examined the claimant. Dr. Robert P. Landsberg diagnosed her injury as a "broad based central disc herniation with intermittent L-5 nerve root irritation" causally related to her injury at work. Dr C. R. Dyer agreed. Both doctors found the claimant to be truthful. Dr. Arthur Cushman, a neurosurgeon, agreed as to causation, but did not comment one way or the other on the claimant's truthfulness. The claimant gave all of the doctors the above history. Our examination of the record reveals no medical evidence and no direct evidence that the injury occurred other than as the claimant and the doctors have said it occurred. The trial court, upon considering all the evidence and arguments of counsel, awarded workers' compensation benefits as provided by law. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6- 225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The appellant first contends the claimant failed to give timely written notice of her injury. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Generally, the beginning date for computing notice is the date on which the effects of the -2-