Anthony Neal Bates v. Cooper Industries, et al.

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 and its insurer contend the evidence preponderates against the award of permanent partial disability benefits. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Bates, is thirty-six years old and a high school graduate. He has done nursery, construction, farming, factory and supervisory work. On September, 4, 1992, while lifting a thirty to forty pound box of coil springs to fill a customer's order, he strained his upper back. After a brief period of recuperation, during which he was treated conservatively by a neurological surgeon, he returned to work with weight lifting restrictions. On May 26, 1994, he strained his lower back in another lifting accident at work and was treated by the same doctor. The doctor again treated the claimant conservatively and returned him to work. The treating doctor and two others to whom he was referred, one an orthopedist and one a pain management specialist, assigned zero percent permanent impairment, using appropriate guidelines. The claimant was referred by his attorney or his family physician to another orthopedic surgeon, who diagnosed cervical and lumbar sprain and assigned a five to ten percent permanent whole person impairment. The disagreement is over whether the injury is in "category one" or "category two," as defined by the guidelines, which involves "a judgment call." The claimant has been terminated because the employer was unwilling to offer him a job within his lifting restrictions. A vocational expert has estimated the claimant's industrial disability at fifty-five to sixty percent. The claimant's own testimony is that he is able to work at a job not requiring repetitive or heavy lifting. The trial court awarded permanent partial disability benefits based on forty-five percent to the body as a whole. 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. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the evidence to determine where the preponderance of the evidence lies.