Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 5-6-225 (e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the plaintiff suffered a vocational disability of 12% to the body as a whole from his back injury, and an additional 15% to the left arm from his wrist injury which occurred two months later. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. The panel further concludes that the appeal was frivolous or for the purpose of delay and remands the case to the trial court for imposition of appropriate penalty. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed, Remanded JOHN A. TURNBULL, SP. J., in which FRANK F. DROWOTA, III, J. and FRANK G. CLEMENT, Jr., Sp. J, joined. William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company MEMORANDUM OPINION Facts This case encompasses two separate on-the-job injuries, and two separate awards by the trial judge. Harold W. Ferrell, Jr., ("Ferrell"), the 37 yearold employee-appellee, worked approximately 18 years for APAC-Tennessee ("APAC") employer-appellant, doing construction and manual labor. He has an eleventh grade education, but no G.E.D. On or about March 18, 1997, Ferrell injured his back while lifting a manhole cast-iron casting while working for APAC. Ferrell went to the emergency room, received treatment and was referred by APAC to Dr. Campbell for further treatment. Ferrell returned to work at a light duty assignment for a short time, but soon resumed his full duties. On or about April 2 or 3, 1997, Ferrell sustained an injury to his left arm when he slipped and fell while climbing down the tracks of a bulldozer he had been operating. The injury occurred when Ferrell reached his arm out to prevent his fall. Ferrell sought medical treatment for the arm approximately one week later. APAC once again referred Ferrell to Dr. Campbell. The only medical proof offered by either side at trial was the C-32 Form of Dr. C. Robinson Dyer, a board certified orthopaedic surgeon who examined Ferrell at his attorney's request. Dr. Dyer indicated that it was more probable than not that Ferrell's back and arm injuries arose out of his employment. He assigned Ferrell a permanent partial impairment rating of 5% to the left arm, and 5% to the body as a whole for the back injury. In addition, Dr. Dyer imposed significant restrictions related to the back injury which included: no lifting or carrying more than 5 pounds; no frequent lifting or carrying over 2 pounds; and only occasional climbing, stooping and kneeling. Restrictions placed by Dr. Dyer relative to the left wrist injury included avoiding overhead motion and repetitive twisting of the wrist. These restrictions were first placed on Ferrell by Dr. Dyer on August 11, 1999. After his injuries, Ferrell continued to work for APAC and performed the full duties and occasional heavy lifting and bending required by his job. Ferrell testified that performance of these tasks was followed by resultant pain and stiffness. Ferrell was permanently laid off by APAC in May of 1998 for "lack of work." The only other witness at trial was Harold W. Ferrell, Sr., who, in addition to being the employee's father, was Ferrell's foremen at APAC. APAC offered no witnesses and no evidence. The trial judge made as a specific finding: "I find the witnesses to be credible." The trial court assigned Ferrell a 15% permanent partial disability to the left arm and 12% permanent partial disability to the body as a whole. The trial court was forced to rely heavily on Dr. Dyer's C-32 Form, the only medical proof before the court. The standard of review for findings of fact by the trial court is "de novo upon the record of trial court, accompanied by a presumption of the correctness ofthe finding, unless the preponderance of evidence is otherwise." Tenn. Code Ann. Section 5-6-225(e)(2)(1999). The trial court is in the best position to evaluate the credibility of witnesses. Story v. Legion Ins. Co., 3 S.W.3d 45, 451 (Tenn. 1999). APAC contends that the employee missed no work as a consequence of his injury and has subsequently obtained employment with another construction company doing a similar job at an increased wage with no seasonal layoff. APAC argues that the test for vocational disability is "whether there has been a decrease in the employee's capacity to earn wages in any line of work [2]