Roger B. Ammons v. John Bouchard & Sons Co.; and

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer claims that the trial court erred (1) in the amount of permanent partial disability awarded, (2) in determining the date permanent benefits commenced, (3) in awarding discretionary costs, and (4) in ordering the employer to pay the employee's attorney's fees. As modified, we affirm the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Davidson County Circuit Court is affirmed as modified. HOWELL N. PEOPLES, SP. J., in which FRANK F. DROWOTA, III, CHIEF JUSTICE., and JOHN A. TURNBULL, SP. J. joined. Andreas W. Smith, Allen, Kopet & Associates, PLLC, Chattanooga, Tennessee, for the Appellant John Bouchard Sons Co., and Associated Builders and Contractors of Tennessee Workers Compensation Self Insurance Fund. Daniel L. Clayton, Kinnard, Clayton & Beveridge, Nashville, Tennessee, for the Appellee Roger B. Ammons. 1 MEMORANDUM OPINION Facts Roger Ammons, a 46-year-old high school graduate, started working at age 17 as a plumber, the only work he has ever done. In 1983, he went to work for John Bouchard & Sons Co. ("Bouchard") as a journeyman plumber. The position required him to engage in heavy manual labor. On December 7, 1999, he sustained injuries to his back and left shoulder in a work-related motor vehicle accident while riding as a passenger in a plumbing truck. The driver of the truck, a 22-year-old co-worker, was killed in the accident. Dr. Daniel Burrus, an orthopedic surgeon, who treated Mr. Ammons, testified by deposition that Mr. Ammons had a 15 percent impairment to the body as a whole for his physical injuries based upon the A.M.A. Guides to the Evaluation of Permanent Impairment, 5th ed. Dr. David Gaw, an orthopedic surgeon, saw Mr. Ammons for evaluation and testified, by deposition, that he had a 24 percent impairment to the whole person for the physical injuries based upon the Guides, 5th Ed. He also testified that Mr. Ammons would have a 15 percent impairment based on the Guides, 4th Ed., which was in effect at the time Mr. Ammons reached maximum medical improvement. Dr. Gaw gave a second deposition in which he testified that Mr. Ammons would have a 25 percent physical impairment under the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. (Tenn. Code Ann. _ 5-6-241 permits the use of either publication without expressing a preference.) In addition to the physical limitations, Dr. John J. Griffin, a psychiatrist, diagnosed Mr. Ammons with post-traumatic stress disorder and dysthymic disorder (depression) with symptoms of anxiety as a result of the accident. He testified, by deposition that Mr. Ammons has Class III or moderate impairment under the Guides, 5th Ed. Dr. Griffin characterized Class III moderate impairment as compatible with some but not all-useful functioning. What I would say in terms of his _ his real life is that psychiatrically he can do many of the things that he needs to, but not all of them. He wears out easier from an emotionally, not just the physical standpoint. He doesn't have the patience that he did before because he gets depressed. He can't persist at some things as well as he could before. Because he's anxious, he's likely to avoid or withdraw from certain kinds of social activities that he would have eagerly looked forward to before and would have insisted on doing. Nicholas Sieveking, Ph.D., clinical psychologist, testified in open court as a vocational expert that Mr. Ammons was "86 percent occupationally disabled, 92 percent occupationally disabled in his own category, and 1 percent occupationally disabled from his job." Both Mr. Ammons and his wife, Donna Ammons also testified that the accident had severely impacted his activities at home and at work. The trial court determined that Mr. Ammons sustained a permanent partial disability of 92 percent to the body as a whole. 2 ****** Document Outline ****** * Page_1 o a1 o a3 o Text5 o a4 o a5 o a6 o a7 o a8 o Text24 o Text12 o a_Opinion_Summary o a1 o a11 o a12 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6