Robert S. Shipley v. Ryder Truck Rentals, 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- 225(e)(3) for hearing and reporting to the Supreme Court its findings of fact and conclusions of law. In this appeal the employer complains that the trial court was in error (1) by allowing the surprise live testimony of Dr. C. M. Salekin contrary to the agreement of the parties and the court's prior orders; and (2) in awarding the employee 1 percent permanent disability to the left eye when the employee was legally blind in the left eye prior to the alleged injury and plaintiff failed to prove any loss of use. We disagree and affirm the trial court on these two issues. The employer also complains that the trial court erred in awarding prejudgment interest. We agree and reverse. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, Sp. J., joined. Daniel C. Todd, Nashville, Tennessee, for Appellant, Ryder Truck Rental, Inc. David H. Dunaway, LaFollette, Tennessee, for Appellee, Robert S. Shipley MEMORANDUM OPINION I. Factual and Procedural Background The employee, Robert S. Shipley, was fifty-eight years old at the time of trial. He went to the eighth grade in school. He drove a truck, farmed and became a long-haul truck driver. He has been employed as a long-haul truck driver during substantially all of his employed years. He became employed by Ryder Truck Rental, Inc., the employer, in 1998. The employer leased its trucks to Universal Furniture, and the employee began hauling furniture in March 1998. In May 1999, the employee sustained a detached retina of the left eye, while unloading furniture. There was no workers' compensation claim made for this injury. In June 1999, the retina of his left eye again detached. It was reattached surgically on July 3, 1999, by Dr. John Hoskins, an ophthalmologist. On January 1, 2, Dr. Hoskins did a follow-up procedure on the left eye, amounting to a removal of silicone oil from the eye. In February 2, he had another left eye recurrent retinal detachment, which was repaired surgically on February 28, 2. After this surgery on July 24, 2, the vision in his left eye tested at 2/4, which was considered to be legally blind.1 Although he was driving a truck for the employer, the lack of vision would have prohibited him from having a commercial driver's license. On August 1, 2, the employee was driving a truck for the employer when the truck was struck by another vehicle traveling the wrong way on Interstate 75 near Chattanooga, Tennessee. The employee observed the injuries of the other driver and watched as he died. He sustained a head injury on the left-hand side of the door and his eye started quivering. The employee was seen at the Cleveland Community Hospital emergency room the day of the accident. While there, approximately four hours after the accident, the employee had a diastolic blood pressure reading of 113. A normal diastolic reading would be below 85 or 8, depending on the doctor. He has suffered from hypertension for several years. The employee worked approximately three weeks in September 2, but has not worked since. Since the accident the employee has been treated by the following physicians: Dr. Luis C. Pannocchia, family practice doctor; Dr. John C. Hoskins, ophthalmologist; and Dr. Kelley Walker, a psychiatrist. He has been evaluated by the following: Dr. Ben Bursten, a psychiatrist; Dr. C.M. Salekin, a neurologist; and Dr. Norman E. Hankins, a vocational evaluator. The vision in his left eye has decreased since the accident from 2/4 and reading the larger "E" on the chart to counting fingers at two feet and not being able to read the larger "E" on the chart. After this cause was commenced, a scheduling order was entered on May 29, 22, which provided that the parties would disclose their Rule 26 experts and statements and no expert would 1 The employee had a detached retina of the right eye but he has normal vision in that eye. -2-