Shirley Ann Borchert v. Emerson Electric 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 employer questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the judgment fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Richard L. Dunlap, Paris, Tennessee, for the appellant, Emerson Electric Company Charles L. Hicks, Camden, Tennessee, for the appellee, Shirley Ann Borchert MEMORANDUM OPINION The employee or claimant, Ms. Borchert, initiated this civil action to recover workers' compensation benefits from her employer, Emerson, for a work related foot injury. Emerson denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 35 percent to the leg. The employer has appealed. 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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant was working on the employer's production line on August 24, 1999, when a piece of sheet metal, approximately one and one-half feet long and eight or nine inches wide, fell from a table top and landed on her right leg at the ankle. The ankle and foot immediately became swollen and bruised. She was taken to the Henry County Medical Emergency Room, where she was treated and referred to Dr. Bo Griffey. Dr. Griffey treated her with antibiotics and pain medication and returned her to light duty work on September 14, 1999. He returned her to full duty on November 2,1999. She continued to have swelling, pain and stiffness in her right ankle. She continued to see other doctors with those complaints. On November 3, 2, more than a year after her injury, she visited Dr. Vince Tusa. She also saw Dr. Segal, who referred her to an orthopedic surgeon, Dr. G. Blake Chandler. Dr. Chandler ordered magnetic resonance imaging, which revealed joint fusion and subcutaneous edema in the medial aspect of the injured ankle. She saw Dr. Joseph Boals, who studied her medical records, examined her and opined that she would retain some minor permanent impairment as a result of the injury. He advised her to wear an ankle brace and permanently restricted her from walking on uneven ground and from excessive stooping, squatting, standing, walking and climbing. She saw Dr. Robert Barnett, who, based on atrophy in her right calf, inability to stand on her right leg for any length of time, limited motion and a chronically swollen right ankle, estimated her permanent medical impairment to be 1 percent to the right lower extremity. She was evaluated by Dr. Amy Dunagan, who found no evidence of muscle atrophy or significant noticeable weakness. The claimant continues to have swelling in her right foot and ankle. She cannot walk or stand for long periods of time without experiencing extreme pain from her right ankle and calf. She takes Alleve to control the pain, has tenderness and limited motion in the injured joint and walks with a limp. Because she is no longer able to perform her assigned duties, she has not worked for the employer since March 14, 21. Her testimony in these respects was corroborated by other lay witnesses. The appellant contends the trial court erred in admitting into evidence the testimony of Dr. Boals because there was a discrepancy between his testimony and the report of Dr. Robb Mitchell, the doctor who performed the magnetic resonance imaging test. Dr. Mitchell's report said the -2-