Kary Ray Frazier v. Bridgestone/Firestone, Inc.,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer and its insurer contend (1) the trial court erred by referring the case to a special master for trial of all issues raised by the pleadings, (2) the evidence preponderates against the special master's finding, adopted by the trial court, that the injured employee has a permanent medical impairment of 13 percent to the body as a whole, and (3) the evidence preponderates against the trial court's award of permanent partial disability benefits based on 32.5 percent to the body as a whole. As discussed below, the panel has concluded the award of permanent partial disability benefits should be reduced to one based on 2 percent to the body as a whole. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Mary B. Little and B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Bridgestone/Firestone and Insurance Company of the State of Pennsylvania. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Kary RayFrazier. MEMORANDUM OPINION The employee or claimant, Kary Ray Frazier, is 34 years old and a high school graduate with experience as a laborer. On March 2, 1997, while working for the employer, Bridgestone/Firestone, he felt a sudden pain in his left shoulder. At the time of the injury, he was reaching out at shoulder level to spin heavy tires to position them properly for branding. He was surgically treated by Dr. David Bratton and Dr. Wills Oglesby, but has seen a number of doctors for treatment or evaluation. Although Dr. Bratton released a ligament and removed a bone and bursa from the injured shoulder, he found no basis for a permanent impairment rating, based on passive range of motion testing. He conceded that he did not use AMA guidelines. Dr. Oglesby later performed open reconstructive surgery to relieve pain and looseness in the injured shoulder. Dr. Oglesby assigned an impairment rating of 6 percent to the body as a whole, based on loss of motion, also using a passive test. He conceded the AMA guidelines favor active range of motion testing, where the patient moves the limb as far as his condition will allow. In passive testing, the doctor moves the limb. Dr. Calvin Robinson Dyer, another orthopedic surgeon, evaluated the claimant. Dr. Dyer estimated the claimant's permanent impairment at 16.2 percent to the body as a whole and opined the injury was causally related to the work the claimant was performing when he felt the sudden pain. Dr. Dyer also prescribed permanent restrictions on the use of the injured shoulder. Dr. Dyer `s opinion was discredited on cross examination as inconsistent with the approved guidelines. Dr. Sammy Mac Smith evaluated the claimant and estimated his permanent medical impairment at 12 percent to the whole body. Dr. Smith's rating was based on AMA guidelines. Dr. James Talmadge, to whom the claimant was also referred for the purpose of evaluation, assigned a permanent whole person impairment rating of 4 percent, also using AMA guidelines. The employee has returned to work at the same or greater wage. Mr. Frazier initiated this civil action to recover workers' compensation benefits for a work- related injury. The defendants answered by denying all the material allegations of the complaint. After hearing and ruling on preliminary motions, the trial court, on the day of trial, referred the case to a special master, Richard McGregor, for the purpose of taking proof and submitting findings of fact and conclusions of law as to all issues. The special master conducted hearings and made findings and conclusions. The trial court, after careful consideration of the record, adopted the findings and conclusions of the special master awarding permanent partial disability benefits based on 32.5 percent to the body as a whole. There is a dispute as to whether the employer and its insurer objected to the reference to a special master. The employer insists the reference of the case to a special master was error because of the holding in Ferrell v. Cigna Property & Casualty Ins. Co., 33 S.W.3d 731 (Tenn. 2), wherein the Supreme Court held it was improper to create a "standing order appointing a clerk and master as special/substitute judge to hear an entire class of cases." Ferrell, at 739. By footnote, the Ferrell court said cases should be referred to a special master on a case by case basis. That case did not address the appellants' next insistence, that the reference in the present case was not proper because it referred the main issues in controversy to the special master. By Tenn. R. Civ. P. 53, a court may submit any matter to a special master. Case law, however, both before and after the 1971 adoption of Rule 53, supports the employer's contention that -2-