Jeff Gaston v. Rskco and Love's Country Stores, Inc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. The defendant employer contends the plaintiff employee failed to give proper notice of a back injury and the evidence preponderates against the trial court's award of twelve percent (12%) to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1998 and Supp. 21) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. B. Duane Willis, Jackson, Tennessee, for appellant, RSKCo and Love's Country Stores, Inc. Gayden Drew IV, Jackson, Tennessee, for appellee, Jeff Gaston MEMORANDUM OPINION The plaintiff, Jeff Gaston (Gaston), was thirty-seven (37) years old at the time of trial. He graduated from high school, obtained a bachelor's degree in organizational leadership and is pursuing a master's degree in business administration. Prior to working for Love's County Stores as a general manager of a Hardee's Restaurant in 1999, Gaston was a manager or food and beverage director for numerous restaurants. On May 27, 2, Gaston was carrying an urn of coffee when he slipped and fell to both knees. He sustained first and second degree burns to his face and received treatment at a local emergency room. Some two to four weeks later, Gaston developed numbness in his left leg. He notified his employer and in July 2 was referred to Dr. David Garey at the Jackson Clinic. On a December 8, 2 visit to Dr. Garey, he reported numbness in his right leg, but denied any back or hip pain. Dr. Garey referred Gaston to Dr. Joseph Rowland, a neurosurgeon at Semmes-Murphey Clinic in Jackson. Gaston saw Dr. Rowland on January 8, 21, with complaints of low back pain and numbness in his right hip and knee. He gave a history of a May 2 fall at work with back pain ever since. An MRI showed mild disc bulging at L4 and L5 but nothing requiring surgery. On his last visit of March 7, 21, Gaston continued to complain of back and right leg pain. Dr. Rowland referred Gaston to Dr. Edward Hockaday for a lumbar epidural steroid injection which was performed on February23, 21. Dr. Hockaday's impressions were "low back pain, right lower extremity pain and right lower extremity numbness secondary to lumbar neuritis with bulging disc at L4-L5 and bulging disc at L5-S1." Dr. Joseph Boals examined Gaston on June 14, 21, for an independent medical evaluation. Dr. Boals found a full range of motion in Gaston's back without spasm and a normal neurological examination. Dr. Boals diagnosed an acute lumbar strain and possible rupture at L5-S1 caused by Gaston's fall at work. Dr. Boals assigned a five percent (5%) permanent physical impairment to the body as a whole based on the AMA Guidelines and advised against prolonged walking, standing, stooping, squatting, climbing and repetitive flexion or extensive rotation of his back. Gaston testified he began having back pain in October 2 and he currently has almost constant pain in his back and numbness in his right leg. He lost his job with Love's County Stores due to reasons unrelated to his injury and he currently works for DET Distributing setting up advertising and delivering approximately two hundred (2) cases of beer a day. He is required to lift, bend, stoop, twist, squat and climb. After the October 2, 21 trial, the Chancellor awarded twelve percent (12%) permanent partial disability to the body as a whole. The employer has appealed and raised two issues: the lack of notice of a back injury and the amount of the award. 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. Tenn. Code Ann. _ 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 the trial court's factual findings. Humphrey v David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, -2-