Wal-Mart Stores, Inc., et al v. Daniel Wilson

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court awarded permanent partial disability benefits based on the functional equivalent of 4% to the employee's left arm and 6% to his right arm. The court based its findings upon the conclusions of a local doctor not presented as a panel option to the employee. The employer contends that the trial court erred in 1) interpreting the appropriate composition for a medical panel under Tenn. Code Ann. _ 5-6- 24 and (2) assessing permanent partial disability benefits. As discussed below, the Panel has concluded that the judgment of the trial court should be affirmed on both issues. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Criminal Court Affirmed. GAYDEN, Sp. J. delivered the opinion of the Panel, in which DROWOTA, J., and LOSER, Sp. J. joined. Allen, Kopet & Boyd, PLLC Nashville, Tennessee, for the appellant, Wal-Mart Stores, Inc. Farrar & Holliman Lafayette, Tennessee, for the appellee, Daniel Wilson. 1 MEMORANDUM OPINION The employee/appellee, Daniel Wilson, is a thirty-nine-year-old male with a sixth grade education. Mr. Wilson never passed the G.E.D. and claims to have no special skills or training. His work experience has been limited to labor work. Mr. Wilson worked for Wal-Mart, Inc., as a stocker for the dairy department in the Gallatin, Tennessee store. On or about July 17, 1998, he began to experience elbow pains while opening boxes of juice and stocking the dairy department. He described his injuries as tendonitis of the elbow from repetitious work. Before his employment with Wal-Mart, Mr. Wilson had never sustained an injury to his right or left arm. Wal-Mart, the employer-appellant, provided Mr. Wilson with a panel of three physicians as provided by Tenn. Code Ann. _ 5-6-24(a)(4) for the July 17 injury. From this panel, Drs. Sanders and Cowden treated Mr. Wilson. He returned to work on light duty on August 25, 1998, and full duty on September 2, 1998. Upon returning to work on full duty, Mr. Wilson reported a second aggravating injury to his arms. When he sought treatment, Dr. Cowden advised him to visit an orthopaedic physician. Pursuant to Tenn. Code Ann. _ 5-6-24(a)(4), Wal-Mart presented Wilson with a separate panel of three orthopaedic physicians, all of who practiced in a neighboring community. Mr. Wilson saw Dr. McInnis, who diagnosed bilateral tennis elbow and ultimately performed surgery on both of Mr. Wilson's elbows. Dr. McInnis assigned Mr. Wilson permanent restrictions of less than 2 pounds and a permanent partial disability of 5% to each arm. After surgery, Mr. Wilson continued to complain of elbow discomfort and sought additional treatment from Dr. Calvin Dyer, a local orthopaedic surgeon not included as a panel option. In accordance with AMA guidelines, Dr. Dyer performed a detailed examination before diagnosing epicondylitus. Dr. Dyer measured Mr. Wilson's range of motion and tested his grip strength. Based upon this test, Dr. Dyer assigned a permanent partial impairment rating of 1% to each arm. He also assigned permanent lifting restrictions of less than thirty pounds. The trial court used the conclusions of Dr. Dyer, rather than those of Dr. McInnis, to award permanent partial disability benefits to the Mr. Wilson in the amount of $34,66.. The court assigned a 4% permanent partial disability rating to the Mr. Wilson's left arm and a 6% permanent partial disability rating to his right arm. Appellate review 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). Panel composition is determined in accordance 2