Marcina Jelks v. The Travelers Insurance Co.

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 questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Kevin J. Youngberg and Zach C. Luttrell, Allen, Kopet & Associates, Jackson, Tennessee, for the appellant, The Travelers Insurance Company David Hardee, Hardee & Martin, Jackson, Tennessee, for the appellee, Marcina Jelks MEMORANDUM OPINION The employee or claimant, Ms. Jelks, initiated this civil action to recover workers' compensation benefits for a work related injury. The Travelers Insurance Company, insurer of the employer, denied liability. After a trial on the merits, the trial court resolved the issues in favor of the claimant and awarded, inter alia, permanent partial disability benefits based on 25 percent to the body as a whole. Travelers has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). 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 which 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 appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant was working at a food processing plant on November 17, 1999, when she slipped and fell on a wet floor, injuring her low back, neck, right knee and right hip. She had immediate pain, which persists. She was conservatively treated by Dr. Keith Douglas Nord for a cervical and lumbo-sacral back strain. Dr. Nord recommended restricted duty, ordered a nerve conduction study and made a return appointment. The doctor continued seeing the claimant at least until January 15, 21, but testified that she had long since reached maximum medical improvement. He estimated her permanent impairment to be none for the back and neck injury, but conceded she was permanently impaired in her right knee and shoulder. On March 7, 21, Ms. Jelks visited another orthopedic surgeon, Dr. Robert Barnett, who had evaluated her following a previous injury, to be evaluated for her present injury. As part of his examination, Dr. Barnett viewed x-rays taken following the November 1999 accident, compared them with earlier x-rays and determined that there had been anatomic changes in the claimant's low back. Based on his findings, Dr. Barnett assigned an impairment rating of 5 percent to the whole person for the low back injury. The injury was superimposed on her previous injury. The appellant first contends there should be no award of permanent disability benefits because the claimant merely suffered increased pain with no anatomic change, relying solely on Dr. Nord's testimony that there was no anatomic change in the claimant's neck or low back. The argument ignores the doctor's testimony concerning the claimant's right knee and right shoulder. It ignores Dr. Barnett's testimony altogether. The trial court did not err in considering Dr. Barnett's testimony that there was an anatomic change. Moreover, the argument overlooks the long standing principle that an employer takes an employee as the employee is, with all defects and diseases, and assumes the risk of having a weakened condition aggravated by an injury which might not affect a normal person. Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519, 522 (Tenn. 1974). From a fair interpretation of Dr. Barnett's testimony, the injury aggravated and worsened a pre-existing condition. The argument is without merit. The appellant next argues the trial court erred in awarding the equivalent of five times Dr. Barnett's medical impairment rating without making specific findings of fact. For injuries occurring -2-