Randy Selby v. Highways, 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 of findings of fact and conclusions of law. The defendant appeals the trial court's decision on the grounds that it argues that the medical testimony preponderates against the trial court's finding that the August 22, 1998, incident was the cause of the plaintiff's psychological injury, that the trial court erroneously allowed Dr. John Averitt, a clinical psychologist, to testify on the issue of permanency and causation, that the trial court erroneously relied upon the testimony of Dr. Averitt in weighing the medical expert evidence, and that the trial court erroneously allowed Dr. Averitt to testify on the issue of maximum medical improvement. We affirm the decision of the trial court but modify the judgment as to the date of the plaintiff's maximum medical improvement. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Putnam County Circuit Court is Affirmed as Modified BYERS, SR.J., in which DROWOTA, C.J., and LOSER, SP.J., joined. John W. Barringer, Jr., of Nashville, Tennessee, for the Appellant, Highways, Inc. James P. Smith, of Crossville, Tennessee, for the Appellee, Randy Selby. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff (employee) was thirty-eight years of age at the time of trial. He testified that he left high school in the ninth grade and began working on a tobacco farm where he worked for approximately two years. He then worked on another farm, in a garment factory, and in a foam rubber factory. He then got married, obtained his graduate equivalency degree, and attended a communications vocational school in the state of Washington. He did not obtain a degree from this school, despite his having thought he did. His final job before working for the defendant was at a paving company where he ran machinery. The plaintiff testified that he began working for the defendant company in approximately 1993. He alleges that he received psychological injuries from an incident that occurred on August 22, 1998, in the course and scope of his employment with Townsend Tree Service. Specifically, the plaintiff alleges that while he was working on a sand crusher at a sand plant, he was "hit on the side of the head with a coke can which caused him to become psychologically unstable." The plaintiff testified that over the course of the years he worked for the defendant there were several "incidents that made him feel bad," and he felt he was abused, harassed, teased, and outright tortured by his co- workers. The testimony at trial showed that this harassment included the plaintiff being shot with a BB gun, being pushed into a lake, getting caught in flume box and drenched with thousands of gallons of water, having lit cigarettes placed in his pockets, having starter fluid sprayed down his pants, and having a rope tied around his neck and pulled by a loader. The plaintiff testified that following the can-throwing incident of August 22, 1998, he went to the emergency room after his eye began to swell and his mother could tell that something was wrong with him. In the emergency room, medical personnel determined that the plaintiff indeed had an injury to the right side of his face. Following his visit to the emergency room, the plaintiff was treated for symptoms of anxiety and panic. He testified that these symptoms manifested themselves in anxiety, hypersensitivity, difficulty focusing, difficulty sleeping, and delusions, including the delusion that his co-workers are trying to kill him. He was treated by Dr. Kirby Pate and examined by several doctors and psychiatrists who testified at trial. Pursuant to the testimony of these doctors, the trial court held that the plaintiff was permanently and totally disabled as a result of the injury of August 22, 1998, to his mental faculties. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the depositions of Dr. Kirby Pate, Dr. James W. Varner, Dr. Ben Bursten, and Dr. Susan K. Vaught, and by the live testimony of Dr. John Averitt. Dr. Pate, a licensed psychiatrist in Nashville, Tennessee, testified by deposition that he first -2-