Carl Loving v. Liberty Mutual Ins. Co.

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 suffered a back injury in a job-related accident on November 4, 1996. The contested issue was the extent of permanent disability, which the Chancellor found was 65 percent to the whole body. The defendant disagrees, appeals, and presents the issues of excessiveness and the allowance of discretionary costs for review, which is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The plaintiff, age 48, has been married 26 years, is a high school graduate, and has worked as a car salesman most of his adult life. But on November 4, 1996, he was otherwise employed at a job which required heavy lifting. While lifting a barrel filled with liquid weighing about 6 pounds, he injured his lower back, which eventually required surgery. He was released to return to work and "just sat around answering the telephone" for two weeks before he was terminated as unable to do the required work. He testified that he has looked for work elsewhere, but that "it's hard to get a job when you can't hardly do anything." He was initially seen by Dr. Steven Sanders, a neurological surgeon, on November 11, 1996. An MRI revealed a herniated disc. Conservative treatment proved ineffective, and Dr. Sanders performed a diskectomy on November 3, 1996. Based on the AMA Guidelines, he opined that the plaintiff had a ten percent impairment, and imposed permanent lifting restrictions. 2