Stephanie Marie Stephens v. Bekaert Steel Wire

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 trial court found the plaintiff sustained an 8 percent permanent partial disability to the body as a whole as a result of an industrial injury while employed by the defendant.1 The defendant says the plaintiff cannot recover because the plaintiff had a previous injury which was aggravated by the accident, and further says the award is excessive. The medical evidence, however, shows the plaintiff suffered a new and distinct injury. Furthermore, we do not find the evidence preponderates against the finding of the trial judge regarding the amount of the award. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company. Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Stephanie Marie Stephens. MEMORANDUM OPINION 1 The trial judge ordered a 6 percent set-off against the award because of payment of long-term disability benefits on an insurance policy paid for by the defendant. There is no appeal on this matter. At the time of trial the plaintiff, the mother of five children, was twenty- nine years of age. She has a high school education and has performed manual labor during most of her adult life. In 1995, the plaintiff received an injury to her back from which she had a 9 percent anatomical impairment and received an award of 19 percent to the body as a whole for the injury. On January 11, 2, the plaintiff fell and injured her back in the course of working for the defendant. The plaintiff testified that as a result of the 2 injury she has constant low back pain which increases with activity, burning pain in her back, and pain and numbness in her legs. She also testified that the injury has affected her ability to carry out her daily activities at home. The plaintiff does several exercises on a daily basis and walks as recommended by her doctor. The work that the plaintiff did for the defendant required lifting, standing and twisting. The plaintiff testified that she is no longer able to do this because of her injury. Medical Evidence Dr. Stephen M. Waggoner, an orthopedic surgeon, saw the plaintiff on February 24, 2, on referral from Dr. Riley Jones, who had been seeing the plaintiff since her 2 injury. Dr. Waggoner found the plaintiff had a pre-existing spondylolisthesis at the L5-S1 level which had been aggravated by the work injury. After a period of treatment, Dr. Waggoner did surgery on the plaintiff and placed a "cage" in the area of the injury to immobilize the vertebra. He testified the need for surgery was caused by the fall of 2. He testified that the fall of 2 caused new symptoms which led him to do surgery on the plaintiff's back. He testified the surgery produced new anatomical changes on the plaintiff's back. Dr. Waggoner testified the plaintiff now has limitations on a permanent basis that she did not have before the injury of January 2. He further testified the plaintiff now had permanent restrictions which she did not have prior to the injury of January 2. Dr. Waggoner placed limitations on lifting and prohibited repetitive bending or stooping. He found the plaintiff suffered a 13 percent anatomical impairment as a result of the January 2 injury. Dr. Joseph C. Boals, III, an orthopedic surgeon, saw the plaintiff in April 21, for the purpose of evaluation. Dr. Boals, for the most part, confirmed Dr. Waggoner's findings as to causation and effect. He was of the opinion that the plaintiff suffered a 23 percent impairment to the body as a whole. Dr. Boals was also of the opinion that the injury of January 2 was a new injury and that the plaintiff suffered new pain and new disablement from the injury. Brenda Dailey, a vocational rehabilitation expert, testified that she examined the medical evidence concerning the plaintiff's injury, her physical imitations, her education, etc., and concluded the plaintiff could perform between 1 and 12 percent of the jobs available in the country. -2-