James Biggs v. Jones Stone Company, Inc.

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 employee was awarded benefits for a 3 percent permanent partial disability to his whole body. He appeals, claiming that his anatomical impairment is ten percent, which should be extrapolated to total and permanent disability. The thrust of his argument is directed to the weight to be given to the expert testimony. The employer admitted that the employee suffered a compensable back injury on September 8, 1995. The issues at trial were limited to the extent of physical impairment and residual vocational disability. The Chancellor found the plaintiff had a five percent impairment. He applied a multiplier of six, T.C.A. _ 5-6-241, resulting in a finding of 3 percent permanent partial disability to his whole body. The treating physician was Dr. Stanley G. Hopp, an orthopedic specialist, who testified that the plaintiff's radicular pain was emanating from the right L-5 nerve root. He performed surgery on February 23, 1996 and removed the offending spurs. Recovery was hampered because of diabetes, but with the passage of time the plaintiff was able to work, with lifting restrictions. Dr. David Gaw, orthopedic specialist, examined the plaintiff for purposes of evaluation. He testified that in his view the plaintiff had a ten percent impairment based on DRE Category III of the Guidelines, which he interpreted as requiring this rating because "anybody that has a radiculopathy that's proven by tests and has surgery, that throws them into Category III." He conceded that he found no symptoms of nerve damage, that the plaintiff was in no distress or pain, that he was taking no medications, had no back spasm, no atrophy or weakness in his legs and had good movement. 2