Vickie Winningham v. Masters Health Care Center

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Masters Health Care Center, contends (1) that the evidence preponderates against the trial judge's finding that the claimant suffered any permanent partial disability from her injury, and (2) that the evidence preponderates against an award of fifty- five percent to the body as a whole. The panel concludes the judgment of the trial court should be modified as provided herein. The claimant, Vickie Winningham, is thirty-nine years old and a high school graduate. She has experience in a variety of unskilled jobs and has worked for this employer since April of 1989 as a nursing assistant. On October 27, 1991, she strained her back while lifting and turning a patient. She went first to Dr. Lloyd Hassler, who prescribed physical therapy. The claimant was referred by a representative of Crawford and Company to three physicians, Dr. James Talmadge, Dr. Arthur Gernt Bond and Dr. Michael Moore. All three testified at the trial by deposition. All three of them found her to be deconditioned from smoking and being overweight. She is five feet, three inches tall and weighs approximately two hundred fifty pounds. Dr. Talmadge diagnosed mild low back strain, symptom magnification and incontinence. Only the back sprain was, according to his testimony, causally related to the injury at work. He estimated her permanent impairment from the injury at none. Dr. Bond's diagnosis was essentially the same, except that he diagnosed degenerative changes unrelated to the injury at work. He agreed that the claimant is not permanently impaired as a result of any work related injury. Dr. Moore diagnosed mechanical low back syndrome and symptom magnification. He assessed her permanent impairment at seven percent to the whole body using the third edition of American Medical Association guidelines and at five percent using the fourth edition, from her injury. The claimant returned to work for two and one-half days, then quit, because of discomfort. She has not looked for other work, but acknowledged that she is able to work and her intent to do so when her claim is finally resolved. She can walk for thirty minutes, but has gained fifty pounds. 2