David Stupp, et al. v. Phillips Auto Body, Llc and First American Insurance Company, et al.

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 findings of fact and conclusions of law. The trial court determined that the plaintiff sustained a 25% vocational impairment to the body as a whole. The defendant asserts that: 1) the plaintiff failed to carry his burden of proof of permanent injury; 2) the trial court erred in finding plaintiff had an operative disk lesion which necessitated surgery; 3) the trial court erred in not granting defendant's motion for additional facts or to amend judgement; and 4) the trial court erred in finding that Dr. Anthony Segal's charges were reasonable and necessary and in granting plaintiff's motion for discretionary costs. Plaintiff asserts that the trial court erred when it awarded plaintiff a 25% disability impairment to the body as a whole, urging that the award should have been higher. We agree with the position of the plaintiff, and for the reasons set forth below, we modify the judgment of the trial court to award a forty-five percent (45%) vocational disability to the body as a whole. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JAMES F. BUTLER, SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Richard W. Vaughn, Jr., Milan Tennessee, for the appellants, Phillips Auto Body, LLC and First American Insurance Company. David G. Mills, Cordova, Tennessee, for the appellee, David Stupp. MEMORANDUM OPINION Plaintiff was, at time of trial, 38 years old, married with four children, and attended school to the 11th grade. Plaintiff was employed as an auto body frame technician at Phillips Auto Body, LLC. The company was owned by Mary and Lou Phillips who also worked there. Plaintiff's duties consisted of vehicle body and frame work. At the time of his injury he was working in the shop on a pickup truck. Plaintiff alleges that on July 1, 21, Plaintiff and a co-worker, Scott Taylor, were lifting the hood off of a pickup truck when Plaintiff sustained an injury to his neck. He notified Lou Phillips immediately. Plaintiff worked the remainder of the day on light duty. The next day Plaintiff still had pain and went to Baptist Minor Medical and then to Campbell Clinic. He was seen by Dr. Douglas Linville at the Campbell Clinic who sent him to physical therapy and prescribed medication. He returned to work the next day. On July 17th, 21, Plaintiff went to physical therapy and returned to work. A discussion ensued between Plaintiff and Mary Phillips because she thought he had been gone longer than she expected, and Plaintiff was terminated that day. Plaintiff continued his physical therapy after termination and was referred to Dr. Ashley Park, also at the Campbell Clinic. Dr. Park ordered an MRI and injected Plaintiff with two steroid blocks. He was then referred to Dr. John Brophy and ultimately retrieved his medical records from Campbell Clinic. His medical records contained a comment about a previous lawsuit and that the Plaintiff had been videotaped "popping wheelies" on a four-wheeler. Dr. Brophy reviewed the MRI and found cervical spondylosis, worse on the left at C5-6 and C6-7, without definite evidence of nerve root or spinal cord compression. Wanting to rule out nerve root compression, he ordered a myelogram/CT scan and later ordered a bilateral upper extremity EMG/nerve conduction study. After reviewing these studies, according to Plaintiff, Dr. Brophy told him that he did not hurt himself at work, that there was nothing wrong with him, and that he should go back to work immediately. Plaintiff thereafter sought the services of Dr. Anthony Segal, a neurosurgeon and provided him with his MRI for review. Dr. Segal ultimately performed surgery on the Plaintiff. After his recovery period, he went back to work for the same company which was under new ownership. At trial, Plaintiff was doing the same work that he was doing prior to his injury with the exception of the heavy lifting. Medical Evidence Dr. John Brophy initially saw the Plaintiff on March 11, 22. He reviewed the Plaintiff's MRI and opined that Plaintiff had cervical spondylosis, worse on the left at C- 5-6 and C-6-7, without definite evidence of nerve root or spinal cord compression. Based on Plaintiff's severity of pain, Dr. Brophy ordered a cervical myelogram/CT scan to rule out nerve root compression. His plan was that if the myelogram demonstrated evidence of nerve root compression, they would discuss surgery. If -2-