Charles Rodger Wilson v. National Healthcare

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in holding that the employee proved by a preponderance of the evidence that his complaints of mid-back pain were caused by a November 5, 2 work-related accident. The employer also contends that the trial court erred by not holding that the instant case is barred as a result of release language in a December 13, 2 court-approved workers' compensation settlement agreement that concluded a previous claim by this same employee. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. M. Bradley Gilmore and Kathleen W. Smith, Nashville, Tennessee for appellant, National Healthcare Corporation. Thomas Jay Martin, Jr., Gallatin, Tennessee, for appellee, Charles Rodger Wilson. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of 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). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND Charles Rodger Wilson was forty-seven years old at the time of trial. He had worked primarily as a cook, kitchen manager, and executive chef since graduating from high school. Wilson had two previous workers' compensation claims prior to the November 5, 2 injury. Each of those claims resulted in a court-approved settlement. Wilson was injured on November 5, 2 when a box of frozen food fell on his back while he was inside the employer's walk-in freezer. Wilson was treated at the Middle Tennessee Family Wellness Center by Dr. Michael R. Bernui on several occasions in November, December and January 21. The first office visit with Dr. Bernui was on November 6, 2. The treatment by Dr. Bernui continued until January 1, 21. Wilson was then referred to Dr. Arthur R. Cushman. Wilson saw Dr. Cushman for the first time on February 16, 21. Dr. Cushman treated Wilson approximately six times with the last office visit occurring on March 29, 22. Dr. Cushman and Dr. Bernui did not relate Wilson's mid-back injury to the November 5, 2 accident. However, Dr. Cushman stated in a letter, "We know he had a previous thoracic disc herniation, again that was almost certainly caused by the trauma he described." An independent medical evaluation was performed by Dr. David W. Gaw on November 2, 22. Dr. Gaw has specialized in orthopedics since 1973. He examined all of the medical records concerning the employee's mid-back injury before examining him. Dr. Gaw also read the depositions of Dr. Cushman and Dr. Bernui before examining Wilson. After interviewing and examining Wilson, Dr. Gaw specifically related the mid-back injury to the November 5, 2 accident and gave Wilson a rating of 5% permanent partial impairment to the body as a whole. CAUSATION