Earl Barrett v. City of Lebanon, et al.

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 is a 4-year-old man whose work experience has essentially been limited to manual labor. On August 2, 1994, during the course and scope of his employment by the City of Lebanon and while using a jackhammer, he sprained a neck muscle while attempting to dislodge the implement. He returned to light duty on February 6, 1995 and full duty on March 2, 1995. The issue is whether the evidence preponderates against the judgment of the trial court that the plaintiff retained a 12.5% permanent partial disability to his body as a whole as a result of the cervical strain. Our review is de novo on the record with the presumption of the correctness of the judgment unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2) and TENN. R. CIV. P. 13(d). The treating physician was Dr. W. Garrison Strickland, board-certified in psychiatry and neurology. His examination and testing revealed mild degenerative changes in the cervical spine. He testified that the results of a functional capacity evaluation were inconsistent, meaning that the plaintiff's efforts were not always sincere. Dr. Strickland declined to state an opinion as to whether the plaintiff had any impairment because there were no objective findings and the functional capacity evaluation was inconsistent. The plaintiff was referred to Dr. Jack Fishbein, an orthopedic surgeon, by his attorney. He saw the plaintiff only on one occasion and testified that he found muscle tightness and limited range of motion with pain radiating from the right shoulder. He assessed 5% impairment to the body as a whole. The trial judge found the testimony of Dr. Fishbein to be more credible than the testimony of Dr. Strickland, who, as stated, declined to state an opinion because he found no objective symptoms and does not give impairment ratings if the functional capacity evaluation is inconsistent. 2