Jimmy Wagner v. Tower Automotive

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. The defendant, Tower Automotive appeals the judgment of the trial court which awarded fifteen percent (15%) permanent partial disability to each arm as being excessive. For the reasons stated in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Deana C. Seymour, Jackson, Tennessee, for appellant, Tower Automotive Products Company, Inc. Gayden Drew IV, Jackson, Tennessee, for appellee, Jimmy Wagner MEMORANDUM OPINION The plaintiff, Jimmy Wagner, was forty-one (41) years old at the time of trial. He has a high school education. Prior to working for the defendant, Tower Automotive Products (Tower), in 1992 or 1993, he worked restoring furniture, drove a truck, worked construction, and obtained a welding certificate. He testified he had no prior problems with his arms, elbows, or shoulders before working for Tower. While at Tower, he developed bilateral carpal tunnel syndrome in 1994 and had surgery on both wrists. He did not file a workers' compensation claim. As a result of the surgery, he doesn't have the grip he used to have. At Tower, plaintiff placed twenty (2) to twenty-five (25) pound parts into a press at a rate of two hundred (2) per hour. Plaintiff reported right shoulder and arm pain to his employer on June 9, 1999. Tower referred him to Dr. Claiborne Christian, an orthopedic surgeon, who diagnosed tendinitis of the shoulder. On June 21, 1999, plaintiff complained to Dr. Christian of pain in both elbows which he diagnosed as lateral epicondlylitis. Dr. Christian continued conservative treatment until October 12, 1999, when he performed surgery on the right elbow and on January 19, 2, for the left elbow. Dr. Christian assigned a three percent (3%) permanent partial disability to each upper extremity based on the AMA Guidelines and no impairment for his shoulders. He did not assign any permanent restrictions. Dr. Larry Johnson, an orthopedic surgeon, saw plaintiff on June 3, 2, for shoulder problems. Dr. Johnson was of the opinion plaintiff's work aggravated a congenital defect known as os acromiale, where the end of the acromion is not completely fused. On the last visit of November 6, 2, Dr. Johnson felt his shoulder problems had resolved and did not assign any impairment or work restrictions. Dr. Joseph Boals examined plaintiff on April 12, 2, with a history of injuries to both shoulders and elbows. On examination, Dr. Boals found a full range of motion with impingement syndrome in both shoulders and a full range of motion in both elbows. His grip strengths were average. Dr. Boals assigned a fifteen percent (15%) permanent impairment to each arm for the residual weakness from the elbow surgeries and five percent (5%) permanent impairment to each shoulder for tendinitis for a combined value of nineteen percent (19%) to each upper extremity. Dr. Boals did not rely on the AMA Guidelines. Dr. Boals stated plaintiff should not engage in his present work as a press operator and should not work overhead or away from his body and to avoid repetitive work and gripping. After being released by Dr. Christian, plaintiff returned to Tower as a press operator on a different machine which is easier on his arms because he does not have to bend or straighten them as much as before. Plaintiff testified his elbows bother him every time he has to grip or twist and pain in his shoulders keep him up at night. The trial court awarded fifteen percent (15%) permanent partial disability to each arm. The scope of review of issues 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 evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Lollar v Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. Humphrey v David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, where the issues involve expert medical testimony which is contained in the record by deposition, -2-