Christopher v. Sockwell

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. At the trial, the only issue was the extent of the claimant's permanent partial disability. In this appeal, the employer's insurer, Argonaut, contends the trial judge (1) erred in accepting the opinion testimony of an examining physician over that of the treating physician and (2) erred in using a multiplier of 4.9 times the medical impairment to determine the claimant's permanent partial disability. As discussed below, the panel has found no reversible error but concluded the award of permanent partial disability benefits should be modified. The employee or claimant, Atkins, is forty-four years old with a college degree in social science work. He has worked as an instructor and hearing officer with the state of Tennessee, as a supervisor with the United States Department of Commerce, as a machine operator and as a forklift operator. On April 18, 1994, Atkins stepped off a forklift and fell, injuring his back and bruising his right side from his shoulder to his foot. He was referred to Dr. David McCord, who performed disc surgery at L4-5 on May 23, 1994. When the claimant's condition did not improve, the doctor performed fusion surgery. At the time of the trial on August 31, 1996, the fusion had not healed and the claimant had not been released by Dr. McCord to return to work. The doctor assessed the claimant's permanent impairment at fifteen percent to the whole body. At the claimant's request, Dr. David W. Gaw conducted a physical examination of the claimant and assessed his permanent impairment at eighteen percent to the whole body. At the insurer's request, Dr. Michael James McNamara conducted a physical examination and assessed his permanent impairment at ten percent to the whole body. From the testimony of the claimant, which the trial judge found to be credible, and the other evidence, the trial judge found the opinion testimony of Dr. Gaw to be "the most convincing." He then multiplied the eighteen percent impairment by 4.9, after stating, "I agree with counsel that the multipliers 5 and 6 are out," and awarded permanent partial disability benefits based on 88.2% 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 record to determine where the preponderance of the evidence lies.