Thomas Hickman v. Liberty Mutual Insurance Co.

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. Plaintiff injured his back on April 29, 1994 while repairing a forklift truck for the employer, Richland, Incorporated. The trial judge awarded him 12-1/2 percent permanent partial disability. He appeals, asserting that the amount of disability should not have been based on the medical report of the first treating physician and that the two and one-half multiplier cap in TENN. CODE ANN. _ 5-6-241 should not have been applied under the facts of this case. We affirm the judgment of the trial court. Plaintiff sustained injury to his back on April 29, 1994 while lifting a cylinder head from a forklift truck. Medical records of Dr. Vaughan Allen, designated as Exhibit 1 to the Deposition of Dr. Earl M. Jeffres, indicate that plaintiff was first treated by Dr. Charles D. Haney, who prescribed medications and rest. When plaintiff did not improve, he was referred by the employer to Dr. Allen. In May of 1995 he was sent by his attorney to Dr. Earl M. Jeffres. The plaintiff first raises the issue that: "The trial court erred in basing its decision on the written report of a non-testifying physician [Dr. Allen] and rejecting the testimony of the only medical expert [Dr. Jeffres]." Dr. Allen's treatment records of May 24, 1994 and May 27, 1994 revealed that plaintiff had a loss of range of motion of his low back, muscle spasm and a straight leg raise test that was positive for lumbar injury. X-ray revealed a central disc protrusion. Plaintiff was taken off work and placed on physical therapy for four weeks. On June 28, 1994, plaintiff returned to Dr. Allen, stating that he was "better but not well." He told Dr. Allen that there was "absolutely no light duty and that he works at very heavy machines . . . " In light of this assertion by the patient, Dr. Allen advised him to continue the chronic exercise program and return for a re-check in two months. Allen further opined that "Certainly, if there is light duty he could start 2