Timothy Tidwell v. Verplank Enterprises, Inc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. Joseph M. Huffaker, Nashville, Tennessee, for the appellant, Verplank Enterprises, Inc. Robert D. Massey, Pulaski, Tennessee, for the appellee, Timothy D. Tidwell. OPINION Facts At the time of this trial, which was held on January, 4, 2, the plaintiff was 36 years of age. He had graduated from high school and had vocational training in combination welding. The plaintiff was in the United State Air Force for six years where he worked as a combination welder. The plaintiff's work history and training are almost exclusively as a welder. On July 28, 1998, the plaintiff was working for the defendant. On that date, he was moving a casket lid from a saw to a table. The plaintiff felt a burning sensation in his shoulder as he did so. The defendant referred the plaintiff for medical care and the plaintiff was seen by Dr. Lloyd Johnson, an orthopedic surgeon, a physician approved by the defendant. The plaintiff was seen by Dr. John McInnis on one occasion at the request of the defendant for evaluation. The plaintiff was unable to continue working for the defendant because of the injury. Medical Evidence Dr. Johnson first saw the plaintiff on September 29, 1998, and determined he had sustained a cervical strain and an injury to his right shoulder. Dr. Johnson saw the plaintiff again on October 13, 1998 after an MRI had been done. The MRI showed the plaintiff had a bulging disc at C4-C5. Dr. Johnson was of the opinion the plaintiff's bulging disc was caused by the injury of July 28, 1998. Dr. Johnson continued to see the plaintiff over the course of several months, during which he found the plaintiff's range of motion was diminished and that he was continuing to have pain as a result of the injury. Dr. Johnson placed permanent restrictions of lifting up to 5 pounds frequently, 65 pounds occasionally and to not work with a helmet (hard hat) for more than one hour at a time twice a day. Dr. Johnson found the plaintiff suffered a 12 percent whole body permanent disability as a result of the injury. Dr. John McInnis examined the plaintiff on behalf of the defendant for the purpose of evaluation. The examination was done on April 15, 1999. Dr. McInnis found there was some loss of motion in the plaintiff's spine and that he had a chronic strain of the muscle in the neck and of the trapezius muscle. Dr. McInnis would restrict the plaintiff from lifting more than five or ten pounds above his shoulders and was of the opinion his work as a welder may accentuate the plaintiff's neck pain. Dr. McInnis was of the opinion the plaintiff had sustained a 5 percent permanent medical impairment to the body as a whole. Discussion The defendant's first contention that the evidence does not support the finding of the trial court that the plaintiff suffered a worker's compensation disability of 72 percent is because the trial court relied upon the testimony of Dr. Johnson, who, according to the defendant, did not properly evaluate the plaintiff under the A.M.A. guidelines. The defendant's complaint is that Dr. Johnson's evaluation is not in compliance with the A.M.A. Guidelines because Dr. Johnson did not use an inclinometer in determining the range of motion as set out in the guidelines. Dr. Johnson testified he followed the A.M.A. Guideline and these allowed the use of other methods of determining loss of motion if the injury did not fit within the definition of the Guidelines. He was of the opinion that the plaintiff's injury fit the exception and proceeded accordingly. The defendant insists that Tennessee Code Annotated _ 5-6-24(d)(3), which directs the use of the guidelines is for the purpose of standardizing the method of rating disabilities. See Corcoran v. Foster Auto GMC, Inc.,746 S.W.2d 452 (Tenn. 1988). The defendant argues, therefore, that Dr. Johnson's evaluation should be rejected. The defendant contends that the only reliable medical testimony is that of Dr. McInnis, who used the inclinometer in determining the plaintiff's range of motion. The defendant argues, therefore, that the impairment rating of 5 percent found by Dr. McInnis should control. Based upon this, the defendant says the award should not be more than 3 percent vocational impairment. We find the defendant's assertions on the issue not to be persuasive. Dr. McInnis found the only -2-