Special Judge Hamilton v. Gayden, Jr.

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. The plaintiff injured his back on June 3, 1995 while in the course of his employment with the defendant. The trial judge found the plaintiff had sustained a 55 percent vocational impairment to the body as a whole. The defendant says the medical evidence submitted at trial was insufficient to show the plaintiff sustained a permanent injury and further says the award was excessive even if the plaintiff sustained permanent injury. The judgment of the trial judge is affirmed. Because there is no contest about the accident which injured the plaintiff, we need not discuss the facts thereof. MEDICAL EVIDENCE The only medical evidence in this case was the testimony of Dr. S. M. Smith, an orthopaedic surgeon. Dr. Smith first saw the plaintiff on August 31, 1995. He testified concerning his examination of the plaintiff and detailed specific findings, not necessary to set out, concerning the injury. When asked his opinion about the plaintiff's injury on the date of August 31, 1995, Dr. Smith said: I felt that he needed an MRI of his lumbar spine, along with an EMG and a nerve conduction study of both lower extremities to fully evaluate the back problem. I also felt that he may need a course of physical activity and possible surgical intervention based upon the findings of the MRI. And at that time, I didn't think I could give him an impairment rating, because his condition had not been fully evaluated.1 Dr. Smith saw the plaintiff on April 3, 1996 and again examined him. When asked about his condition at that time, Dr. Smith said: He continues to have problems with his back. His examination was completely unchanged. And I told him that since we cannot get any studies done, that I would go ahead and rate him based on the physical findings that he has now. And he has enough physical findings to make me think that he has nerve root impingement in the lumbar region. I think that he deserves an MRI to help better elucidate this problem. I would not feel comfortable sending him to PT without an MRI, because if he does have a ruptured disc, then this could make his condition worse. 1 The defendant would not pay for an MRI or EMG because they did not recognize the plaintiff's injury as compensable. The plaintiff could not afford the cost of the tests. 2