David Prater v. Mayfield Dairy Farms, Inc.

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 trial court found the plaintiff 9 percent vocationally disabled. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Bert Bates, Cleveland, Tennessee for the appellant, David Prater. Kent T. Jones, Chattanooga, Tennessee for the appellee, Mayfield Dairy Farms, Inc. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, 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 application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The plaintiff, age forty at the time of trial, is married with two minor children. He has a high school education and graduated from a two-year vocational program in auto mechanics. His work history consists of work in a service station, in a machine shop, as a local delivery truck driver and in a factory. The plaintiff began working for the defendant sometime in October of 1995. While employed with the defendant, the plaintiff also worked as a part-time police officer for the City of Niota and as a reserve officer for the McMinn County Sheriff's Department. On December 1, 1998, the plaintiff was nearing the end of his shift and was performing trash detail duties when he injured his back. The plaintiff was lifting 2 to 5 pounds of cardboard boxes at a time and placing them in a baler. He bent over to lift some boxes into the baler, experienced "excruciating pain" and blacked out. He was taken to the hospital by ambulance and kept overnight for treatment. An MRI revealed a ruptured disc, which was subsequently treated with surgery. After surgery, the plaintiff continued to experience disabling pain in his back and leg. Despite extensive treatment for his work-related injury, the plaintiff has not been able to return to work. A post-surgical MRI revealed inoperable scarring at the surgical site. A Functional Capacity Evaluation was performed on February 23, 1999; it showed the plaintiff capable of performing sedentary work. A later Functional Capacity Evaluation performed by the same examiner showed the plaintiff incapable of even sedentary work as defined by the United States Department of Labor. The trial court found the plaintiff suffered a work-related injury resulting in a medical impairment of 25 percent to the body as a whole and further found the plaintiff sustained a 9 percent permanent partial disability. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Medical Evidence Dr. Robert E. Finelli first saw the plaintiff on December 7, 1998, on referral from the physician who treated the plaintiff's work-related injury at the hospital. Dr. Finelli reviewed the plaintiff's MRI, which showed a very large extruded disc at the L-5, S-1 level on the left side. Dr. Finelli also noted the plaintiff had weakness and a positive straight leg raise. Surgery was recommended, and Dr. Finelli advised the plaintiff about the risk of pain syndrome as a post-surgical complication whenever weakness is present pre-operatively. On December 21, 1998, Dr. Finelli performed a laminectomy and removed a large free fragment of disc material that was compressing the nerve root on the plaintiff's left side. When the plaintiff's condition failed to improve after surgery, Dr. Finelli referred the plaintiff to a pain management specialist. Dr. Finelli referred the plaintiff for the February 23, 1999, Functional Capacity Evaluation, which showed the plaintiff capable of sedentary work; he then assigned the plaintiff a 12 percent whole body impairment rating. Dr. Finelli stated in his deposition testimony that he traditionally adopts the findings of the Functional Capacity Evaluation. Dr. Finelli last saw the plaintiff in March of 1999. He was no longer treating the plaintiff when the second Functional Capacity Evaluation, which showed the plaintiff incapable of even sedentary work, was performed. Dr. Finelli was made -2-