Rex Taylor v. Emerson Motor Company

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Emerson Motor Company (Emerson), appeals the judgment of the Circuit Court of Decatur County, where the trial court found: (1) an injury by accident, (2) the plaintiff, Rex Taylor (Taylor), did not have a meaningful return to work, and (3) awarded the maximum benefits of two hundred sixty (26) weeks of benefits under Tennessee Code Annotated, _5-6-27 (4). For the reasons stated in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed MALOAN, SP. J., in which HOLDER, J., and WEATHERFORD, SR. J., joined. P. Allen Phiillips and B. Duane Willis, Jackson, Tennessee, for the appellant, Emerson Motor Company. Gayden Drew IV, Jackson, Tennessee, for the appellee, Rex Taylor MEMORANDUM OPINION At the trial of this case, Taylor was sixty-two (62) years old and completed the fifth (5th) grade in school. He testified he can only read or write "little stuff" and would be unable to read a newspaper. He does not have any vocational training. Taylor began working at age fifteen (15) in his uncle's garage. He worked for United Foods on a production line for five (5) years. He then farmed and drove tractors for a few years and worked in a service station for nine (9) or ten (1) years. He worked at Standard Oil for eleven (11) years doing machinery maintenance before he began to work for Emerson in the maintenance department. On November 2, 1997, Taylor injured his back while using a sledge hammer to loosen a frozen bearing on a lathe shaft. He felt a "pop" and pain in his low back and left leg. Prior to this injury, Taylor did not have any back problems. Taylor continued to work for Emerson at the same wage as before his injury until he retired in May 1999. He testified fellow workers assisted him; he sat down when necessary; he limited his lifting and climbing; and he obtained a parking card so he would not have to walk across the parking lot. He stated, "I kept dragging around with everybody's help, helping me out." During this time, he experienced a lot of back pain and finally retired due to the back pain and his limited ability to work. Dr. Glenn Barnett, a neurosurgeon in Jackson, Tennessee, was Taylor's treating physician. He first saw Taylor on July 2, 1998. A CT scan of Taylor's back showed significant degenerative joint disease in his lumbar spine, spondylolisthesis at L4 and L5, and evidence of an acutely herniated L4 disc. An EMG disclosed mild early peripheral neuropathy in his legs. Dr. Barnett was of the opinion the spondylolisthesis was not caused by his work, but could have been aggravated by his work injury, and the herniated L4 disc "certainly could have been caused by work injury or other injuries in his life." Dr. Barnett last saw Taylor on February 1, 1999. He felt Taylor should limit his lifting and be careful in how he lifts. Dr. Barnett assigned a ten percent (1%) permanent impairment to the body as a whole for his back condition and recommended Taylor work toward early retirement-- "get out of the plant and take it easy." Dr. John Brophy, a neurosurgeon in Memphis, saw Taylor on October 14, 1998, for a second opinion. Dr. Brophy diagnosed lumbar radiculopathy and back pain associated with lumbar spondylolisthesis. Although Dr. Brophy did not find any relationship between the work injury and the spondylolisthesis, he agreed the lumbar radiculopathy was aggravated by the injury. Dr. Brophy assigned an eight percent (8%) permanent impairment to the body as a whole. Taylor was examined by Dr. Joseph Boals, an orthopedic surgeon in Memphis, for an independent medical evaluation on November 11, 1998. Dr. Boals diagnosed spondylolisthesis at L4-5, degenerative disc disease at L4-5 and L5-S1, a ruptured L4 disc and severe loss of motion secondary to these conditions. Dr. Boals stated the injury aggravated Taylor's preexisting back problems. Dr. Boals assigned a twenty-four percent (24%) permanent impairment to the body as a whole and placed permanent restrictions of no prolonged walking, standing, squatting, lifting of more than five (5) pounds at a time, or any type of rotary or bending activities with his back. ANALYSIS The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tennessee Code Annotated _5-6-225(e)(2). Lollar v Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded -2-