Ralph D. West v. Sonic Drive-In and Anco Interstate Insurance Company

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 plaintiff alleged that he injured his back on November 27, 1991 while employed as a cook. He sought medical treatment about one month later and in course was referred to Dr. Fonda Bondurant, an orthopedic surgeon in Lebanon, Tennessee, who performed a hemilaminectomy and discectomy on January 27, 1992. The surgery was successful, and the plaintiff was released to return to work on March 31, 1992. Utilizing the AMA Guidelines, Dr. Bondurant gave the plaintiff an impairment rating of eight percent "strictly because he had surgical intervention performed." This case has been twice tried. The first trial was held on April 19, 1993 and ended with a non-suit after the plaintiff and his wife testified. The second trial was held on October 4, 1994 resulting in a finding that the plaintiff had a 32 percent vocational impairment. The defendant appeals and presents for review the issues of notice, occurrence, injury and disability. An issue involving the admission of certain Social Security records is also presented. Our review is de novo on the record, accompanied with the presumption that the findings of fact of the trial court are correct unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2). At the outset, we are constrained to observe that this 38-year-old man has testified three times; once upon discovery and twice in open court. His testimony is inconsistent and obviously underwent considerable fine-tuning during the interim between trials. The Chancellor expressed his dissatisfaction with certain aspects of the case, but in the end resolved the issues of notice and injury favorably to the plaintiff, chiefly because a reputable orthopedic surgeon took a history from the plaintiff two months after the injury and performed major corrective surgery on him. In any event the Chancellor is the best judge of the credibility of the plaintiff and we 2