Jeffrey K. Boyce v. Dab Plumbing, Inc. and Oak River

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erroneously: (1) awarded payment of unauthorized medical expenses, (2) refused to apply the statutory cap allowed by Tenn. Code Ann. _ 5-6-241(a)(1) to the permanent partial disability award, and (3) granted excessive permanent partial disability benefits in light of the employee's vocational factors. The issues turn on witness credibility and findings of fact. The Panel defers to the trial court and finds that the trial court opinion should be affirmed in all respects. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. John A. Turnbull, Sp. J., in which Frank F. Drowota, III, Chief Justice, and James L. Weatherford, Sr, Sp. J., joined. Clancy F. Covert and Michael W. Jones, Wimberly Lawson Seale Wright & Daves, Nashville, TN, for the appellants, DAB Plumbing, Inc. and Oak River Insurance Co. Joseph L. Mercer, Nashville, TN, for the appellee, Jeffrey K. Boyce. MEMORANDUM OPINION Facts Jeffrey Boyce ("Jeffrey")1, the appellee, was employed by DAB Plumbing, Inc. ("DAB"), which is owned by his brother David Boyce ("David") and his sister-in-law Debbie Boyce ("Debbie"). Jeffrey was a "plumbers' helper" who carried materials to and from a job site and performed the physical "grunt work" necessary to enable the plumber to do his job. On May 31, 22, Jeffrey injured his back when he stooped to walk under a chain as he returned from the truck carrying materials. Debbie took Jeffrey to the emergency room that day. He was told to return to see another doctor if he was still in pain in a few days. Jeffrey never saw the recommended doctor but instead returned to work. After Jeffrey had returned to work for over three months, he and David had an argument over a personal matter on September 9, 22. Jeffrey claims that David terminated his employment at that time in a fit of anger. David claims that he never terminated Jeffrey's employment, but assumed Jeffrey had quit because he did not return to work. However, on appeal David claims that he did terminate Jeffrey for misconduct (not reporting to work on September 9). At some time following the day of the argument, David retrieved Jeffrey's company truck, which was Jeffrey's only vehicle. Jeffrey claims that he repeatedly told David and Debbie of his continued back pain, although David and Debbie deny being aware that Jeffrey needed to see a doctor. Neither party asserts that Jeffrey directly requested to see a doctor. Jeffrey claims he was afraid to see or request to see a doctor because requesting medical attention would jeopardize his employment. There is no evidence that Jeffrey had any prior medical problems with his back. Debbie testified that a workers' compensation report was filed with the insurance company following Jeffrey's injury. Jeffrey was never contacted by a representative from DAB's insurance company, and DAB did not comply with the Tennessee statute requiring it to furnish Jeffrey with a panel of doctors to consult. Jeffrey was referred to Dr. Walter W. Wheelhouse by his attorney. Dr. 1 The first names of the parties are used throughout this opinion, not out of disrespect for the parties, but to better identify the parties since they all have the same family name.