Western Express, Inc. v. Giovanni Orlando

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in adopting the medical opinion of Dr. Richard Fishbein over the opinion of Dr. Todd Bonvallet with respect to permanent medical impairment. The employer also contends that the trial court erred in awarding 26% permanent partial disability. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. J. Bartlett Quinn, Chattanooga, Tennessee for appellant, Western Express, Inc. James S. Stephens, Manchester, Tennessee, for appellee, Giovanni Orlando. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2); Stone v. City of McMinnville, 896 S.W. 2d 548, 55 (Tenn. 1995). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND At the time of trial, Giovanni Orlando was thirty-four years old. He grew up and graduated from high school in Italy. After high school, he served in the Italian Army and received an honorable discharge. He then immigrated to the United States. Since coming to the United States, he has worked primarily as a truck driver. The injury in the instant case occurred in March 21. Orlando had been unloading water heaters and awakened the following morning with pain in his back. He had suffered a previous work-related injury to the same area of his back. The previous injury required surgery and Orlando received a court-approved award for permanent partial disability and future medical benefits. OPINIONS OF THE MEDICAL EXPERTS Dr. Todd Bonvallet treated Orlando for his March, 21 back injury. Following a period of conservative treatment, Dr. Bonvallet performed a surgical procedure on Orlando's back. Dr. Bonvallet, in his first deposition taken on September 6, 22, opined that at the time the employee returned to work in April, 22, he had suffered a 12% permanent partial disability to the whole person. Dr. Bonvallet gave a second deposition on December 13, 22 in which he opined that Orlando should receive a 2% permanent partial impairment rating for the second injury since he had already received 1% for the first injury to the same area. Upon cross- examination, Dr. Bonvallet agreed that an additional 1% impairment rating was appropriate and opined that Orlando had a 3% permanent partial impairment to the body as a whole as a result of the second back injury. Dr. Richard Fishbein examined Orlando and opined that Orlando retained a 2% permanent partial impairment rating after the second back injury with 5% to 8% attributed to the first injury. Dr. Fishbein then arrived at a rating of 13% permanent partial impairment to the body as a whole as a result of the second back injury. The trial court gave more weight to the medical opinion of Dr. Fishbein than to the opinion of Dr. Bonvallet. In its memorandum opinion, the trial court stated that, "[i]n this case the treating physician, for whatever reason, followed his own methods as to the evaluation. In a supplemental deposition, he reluctantly added an additional 1% to his original 2% medical impairment rating. On the other hand, Dr. Fishbein in considerable detail explained his conclusions regarding a 13% medical impairment rating. When comparing the explanation given by the two physicians, I conclude that