Nathaniel Hampton v. Connecticut Indemnity Company

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. In this appeal, the employee insists the evidence preponderates against the trial court's finding that he did not suffer a permanent injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Nathaniel Hampton Jeffery G. Foster, Jackson, Tennessee, for the appellee, Connecticut Indemnity Company MEMORANDUM OPINION On or about June 7, 1999, the employee or claimant, Hampton, strained his knee at work. He reported the accident to his employer, who provided medical care, including diagnostic testing and physical therapy. A Magnetic Resonance Imaging scan revealed no abnormality. Dr. James Varner viewed the test report and examined the claimant, but found no evidence of a permanent injury. Dr. Joseph Boals examined the claimant and found minimal tenderness over the injured knee and guessed the claimant's permanent impairment at 5 percent, based on subjective complaints. Accepting the medical testimony of Dr. Varner, the trial court found that the evidence failed to establish the probability of a permanent injury. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The claimant seeks an "in-depth review" of the evidence to determine where the preponderance of the evidence lies.