Dwain Parks v. Royal Insurance Company of America

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 employer's insurance carrier contends (1) the award of permanent partial disability benefits based on 5 percent to the body as a whole is excessive because the trial judge considered aggravation of a pre-existing mental condition in addition to carpal tunnel syndrome, (2) the trial court erred in awarding any permanent vocational disability benefits, (3) the trial court erred in awarding a psychologist's witness fee as discretionary costs, and (4) the trial court erred in awarding a medical examiner's fee as discretionary costs. The employee insists the award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded the judgment should be modified with respect to discretionary costs, but otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Robin H. Rasmussen, Cordova, Tennessee, for the appellant, Royal Insurance Company of America Michael W. Whitaker, Covington, Tennessee, for the appellee, Dwain Parks MEMORANDUM OPINION The employee or claimant, Parks, is a 52 year-old high school graduate. He began working for Ring Can in 1989. He gradually developed bilateral carpal tunnel syndrome from repetitive use of the hands at work. The date of injury is June or July of 1997. When conservative care failed, the treating physician performed carpal tunnel releases and estimated the claimant's permanent impairment at 2 percent to each. The claimant returned to work for the employer on October 15, 1997, but again developed symptoms of carpal tunnel syndrome. He worked regularly until the death of his father. An independent medical examiner, Dr. Janovich, estimated his permanent impairment at 9 percent on the right and 13 percent on the left, considering his post-operative symptoms. A psychiatrist testified that anxiety from the injury permanently aggravated his pre-existing depression. The psychiatrist characterized the claimant's depression as serious and established the required causal connection to the claimant's carpal tunnel syndrome. The claimant's testimony, accredited by the trial court, is that he is significantly limited in his ability to work. A psychologist testified regarding the claimant's limitations, based on personal observations. Upon the above summarized evidence, the trial court awarded permanent partial disability benefits based on 5 percent to the body as a whole. 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). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). 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 appellant insists the claim, to the extent it is based on aggravation of a preexisting mental condition, should be dismissed for lack of notice. 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. Tenn. Code Ann. _ 5-6-21 (2). 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. Id. 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 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). The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. Id. In determining whether an employee has shown a reasonable excuse for failure to give such notice, courts will consider the following criteria in light of the above reasons for the rule: (1) the -2-