The Defendant appeals a judgment entered by the Blount County Circuit Court awarding the Plaintiffs discretionary costs including attorney fees. This appeal arises from an earlier action (second lawsuit) seeking specific performance of a settlement agreement resolving the original lawsuit filed by the Defendant.
Emmett Earl Falcon v. Gaylord Entertainment Company, M2000-02948-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol L. Soloman, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer contends (1) the trial court erred in concluding that the Last Injurious Exposure Rule applied to the facts of this case and (2) the trial court erred in finding the employee was not barred from recovery because of a misrepresentation in the employment application process. In this case, the employee had two successive employers. The trial court found that the employee developed symptoms of bilateral carpal tunnel syndrome while he worked for the first employer but that the employee's condition was aggravated from his work for the second employer. We agree with the trial court that the Last Injurious Exposure Rule applies to this case. As discussed herein, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Byron Davis, Jr. and M. Scot Ogan, Nashville, Tennessee, for the appellant, Wal-Mart Stores, Inc. Richard K. Smith, Nashville, Tennessee, for the appellee, Gaylord Entertainment Company. Steve C. Norris, Nashville, Tennessee, for the appellee, Emmett Earl Falcon. MEMORANDUM OPINION The employee or claimant, Emmett Earl Falcon, is forty-nine years of age. His limited college education pertained specifically to airplane mechanics which requires extensive use of the hands. From June of 1994 to January 9, 1998, the claimant was employed as an oiler engineer on river taxis for Gaylord Entertainment Company. While employed with Gaylord, the claimant began experiencing tingling and numbness in his right arm. On May 22, 1996, Dr. James Wolfe, a neurologist, diagnosed the claimant with a mild generalized peripheral neuropathy. Dr. Wolfe concluded that he could not exclude the possibility of mild left carpal tunnel syndrome. On January 13, 1998, four days following the end of his employment with Gaylord, the claimant was diagnosed with mild to moderate bilateral carpal tunnel syndrome by Dr. Richard Rubinowicz, a neurologist. On March 2, 1998, the claimant began working at the employer-appellant, Wal- Mart Stores, Inc. At Wal-Mart, the claimant worked as a floor maintenance attendant using vibrating floor cleaning machines, specifically butane buffers. At times, he was required to use the buffers for periods as long as four to five hours. The claimant began wearing hand braces in an attempt to alleviate the increased pain of his carpal tunnel condition. He also took unscheduled breaks at Wal- Mart to "rest his hands" and relieve the pain. The claimant was terminated from his job at Wal-Mart on April 28. Dr. Thomas E. Tompkins, an orthopedic surgeon, performed carpal tunnel release surgery on the claimant's hands; his left hand on August 12, 1998, and his right hand on September 2, 1998. On October 23, 1998, Dr. Tompkins estimated a five percent permanent impairment in each hand. Dr. Tompkins released the claimant from medical treatment with instructions to avoid repetitive forceful gripping for three months. On February 23, 1999, Dr. David W. Gaw, an orthopedic surgeon, assigned a ten percent partial permanent impairment to each arm, constituting twelve percent to the body as a whole. Dr. Gaw said that the carpal tunnel syndrome was caused by the claimant's job at Gaylord. However, he acknowledged that if the claimant's symptoms worsened at Wal-Mart, then that would be evidence of an actual aggravation of the condition. Dr. Gaw recommended that the claimant avoid continuous gripping, squeezing or constant manipulation with his hands. During the application process at Wal-Mart, the claimant indicated that he would be able to perform the physical functions of the job, including repetitive hand grasping and firm hand gripping. Wal-Mart did not inquire about the claimant's physical condition. From the above summarized evidence, the trial court found that the claimant's carpal tunnel syndrome was aggravated by his employment at Wal-Mart and dismissed the claim against Gaylord. The trial court awarded medical and disability benefits against the second employer, Wal-Mart. When an employee becomes disabled as a result of an occupational disease, the employer for whom the employee was working when he was last injuriously exposed to the hazards of the disease is responsible for payment of compensation benefits. Tenn. Code Ann. _5-6-34. A similar rule applies when a worker suffers two or more disabling injuries by accident while working for different -2-
Davidson
Workers Compensation Panel
Dwain Parks v. Royal Insurance Company of America W2000-02778-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Martha B. Brasfield, Chancellor
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. In this appeal, the employer's insurance carrier contends (1) the award of permanent partial disability benefits based on 5 percent to the body as a whole is excessive because the trial judge considered aggravation of a pre-existing mental condition in addition to carpal tunnel syndrome, (2) the trial court erred in awarding any permanent vocational disability benefits, (3) the trial court erred in awarding a psychologist's witness fee as discretionary costs, and (4) the trial court erred in awarding a medical examiner's fee as discretionary costs. The employee insists the award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded the judgment should be modified with respect to discretionary costs, but otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Robin H. Rasmussen, Cordova, Tennessee, for the appellant, Royal Insurance Company of America Michael W. Whitaker, Covington, Tennessee, for the appellee, Dwain Parks MEMORANDUM OPINION The employee or claimant, Parks, is a 52 year-old high school graduate. He began working for Ring Can in 1989. He gradually developed bilateral carpal tunnel syndrome from repetitive use of the hands at work. The date of injury is June or July of 1997. When conservative care failed, the treating physician performed carpal tunnel releases and estimated the claimant's permanent impairment at 2 percent to each. The claimant returned to work for the employer on October 15, 1997, but again developed symptoms of carpal tunnel syndrome. He worked regularly until the death of his father. An independent medical examiner, Dr. Janovich, estimated his permanent impairment at 9 percent on the right and 13 percent on the left, considering his post-operative symptoms. A psychiatrist testified that anxiety from the injury permanently aggravated his pre-existing depression. The psychiatrist characterized the claimant's depression as serious and established the required causal connection to the claimant's carpal tunnel syndrome. The claimant's testimony, accredited by the trial court, is that he is significantly limited in his ability to work. A psychologist testified regarding the claimant's limitations, based on personal observations. Upon the above summarized evidence, the trial court awarded permanent partial disability benefits based on 5 percent to the body as a whole. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e) (2). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellant insists the claim, to the extent it is based on aggravation of a preexisting mental condition, should be dismissed for lack of notice. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. _ 5-6-21 (2). Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. Id. Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. Id. In determining whether an employee has shown a reasonable excuse for failure to give such notice, courts will consider the following criteria in light of the above reasons for the rule: (1) the -2-
Plaintiff, Mike G. Pauley, an inmate at the Madison County Penal Farm (Penal Farm), appeals from an order of the trial court dismissing his pro se complaint against the defendants, 1 Plaintiff filed suit against Madison County, Madison County Penal Farm, David Woolfork, the Madison County Sheriff and Penal Farm Superintendent, Captain Jackson, the Penal Farm’s Head Controller and Acting Warden, Sergeant Jered, the first shift sergeant, Sergeant Evans, the third shift sergeant, Officer Steven Horner, and Officer Cleo King in their official and individual capacities. 2 4which include Madison County, the Penal Farm, and several of the Penal Farm’s personnel.1
In this divorce action, the Plaintiff, Lawrence Woodward Hamilton, filed his petition 2 for divorce on July 20, 1993. The Defendant, Brenda Kay Smith Hamilton, filed a countercomplaint seeking a divorce on the grounds of inappropriate marital conduct. The trial court granted the Defendant’s request for a divorce on the grounds of inappropriate marital conduct. The trial court awarded the parties’ marital residence as well as household furnishings to the Defendant. The Plaintiff was ordered to pay all outstanding marital debts other than the first and second mortgage on the marital residence, all expenses incurred by the Defendant as a result of this action including the Defendant’s attorney fees and $2,200.00 per month in permanent alimony. The trial court awarded the Defendant onehalf of the Plaintiff’s retirement proceeds and ordered the Plaintiff to maintain the Defendant on his health insurance policy for three years. The trial court further ordered the Plaintiff to maintain a $50,000.00 life insurance policy naming the Defendant as the irrevocable beneficiary. The Plaintiff has appealed the judgment of the trial court arguing that the trial court erred in awarding the Defendant permanent alimony and attorney fees. For the reasons stated hereafter, we affirm the judgment of the trial court.
The appellant, Robert Willis Chance, pled guilty to one count of second degree murder and one count of attempted first degree murder. Pursuant to the plea agreement, the sentences were to be served concurrently. The Hardin County Circuit Court imposed a sentence of twenty-three years for each conviction. In his sole issue, the appellant contends that the trial court erred in imposing twenty-three year sentences because of the misapplication of Tenn. Code Ann. § 40-35-210 (1995 Supp.), regarding the presumptive sentence of a class A felony.
The Appellant, Michael Anthony Pike, appeals as of right his sentences for simple possession of marijuana, possession of marijuana with intent to sell, and possession of drug paraphernalia. He argues on appeal that the trial judge erred by not placing him in community corrections or, in the alternative, by not giving him the minimum statutory sentences. After a careful review of the record on appeal, we affirm the trial court’s judgment.
The defendant, Elton Donald Bowers, also known as Rashid Qawwi, was convicted of aggravated robbery and possession of a weapon with the intent to employ in the commission of the robbery. Tenn. Code Ann. § 39-13-402 and Tenn. Code Ann. § 39-17-307. The trial court ordered the weapons conviction merged with the aggravated robbery, classified the defendant as a career offender, and imposed a thirty-year sentence.
Madison
Court of Appeals
E.L. (Eldred) Reid, v. Jason Petty 02A01-9611-CV-00269
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Joe G. Riley. Jr.
Eldred L. Reid (Plaintiff) sued Jason Petty (Defendant) for “pain and suffering with mental stress” alleged to have resulted from the defendant’s failure to timely respond to Plaintiff’s request for pain medication. Summary judgment was entered in favor of Defendant on the grounds that the trial court lacked jurisdiction and that the defendant was immune pursuant to T.C.A. § 9-8- 307(h).
Plaintiff, Gary Bernard Sanders, an inmate in the custody of the Tennessee Department of Correction (TDOC) at the Cold Creek Correctional Facility, appeals from an order of the trial court dismissing his complaint against the defendant, Jimmie L. Jones, a correctional officer at the facility.1
The plaintiff’s employer had a generous profit-sharing plan to which the plaintiff was not required to contribute. The trial judge declined to treat this fund as marital property because the “plaintiff didn’t earn it, and the defendant didn’t contribute to it.”
This is a domestic relations case. The issues are whether the evidence preponderates against (1) an award of alimony in futuro to the appellee, (2) the finding that an alleged loan to the parties was intended as a gift, (3) an award of attorney’s fees.
This is a domestic relations case. The issues are whether the evidence preponderates against (1) an award of alimony in futuro to the appellee, (2) the finding that an alleged loan to the parties was intended as a gift, (3) an award of attorney’s fees.
This appeal came on to be heard upon the record from the Circuit Court of Knox County and briefs filed on behalf of the respective parties. Upon consideration thereof, this Court is of the opinion that there is reversible error in the trial court's judgment.
Knox
Court of Appeals
Heck Van Tran v. State of Tennessee W2000-00739-SC-R11-PD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John P. Colton, Jr.
We granted this appeal to determine whether the trial court and the Court of CriminalAppeals erred by denying the petitioner’s motion to reopen his post-conviction petition. In hismotion, the petitioner asserted that new evidence establishes that he is mentally retarded and,therefore, ineligible for the death penalty under Tenn. Code Ann. § 39-13-203, which prohibits theexecutionof the mentally retarded. The petitioner also argued on appeal that the Eighth Amendmentto the United States Constitution and article I, § 16 of the Tennessee Constitution prohibit the execution of mentally retarded individuals.
With its decision today, a majority of this Court has effectively permitted a defendant, who was sentenced to death in 1989 for the brutal execution of a 74-year-old grandmother, an opportunity to escape the ultimate punishment for his actions solely because he has managed to obtain a lower score on a revised I.Q. test than he was previously able to do. Before today, the Constitution of this State has never been held to provide blanket capital immunity to a class of persons based only on the fact of low intellectual ability and deficits in adaptive behavior. Instead, the Constitution has barred such executions only when the defendant’s mental condition displaces the following capacities: (1) the cognitive capacity to appreciate that certain action will lead to the death of others; (2) the moral capacity to appreciate the wrongfulness of murder; or (3) the volitional capacity to behave in a lawful manner.
In this action, Plaintiff Eddie Heath (“Heath”) filed a pro se complaint for declaratory judgment to determine whether he provides a taxable service under the Business Tax Act. Heath brought suit against A.C. Gilless (“Gilless”), the Shelby County Sheriff, Jayne S. Creson (“Creson”), the Shelby County Clerk, as well as two employees of the Shelby County Clerk’s Office, Waylon Wininger (“Wininger”) and Pat Hutchinson (“Hutchinson”). The trial court dismissed Heath’s complaint, finding that it failed to state a claim upon which relief could be granted. We affirm.
Plaintiff's actin filed against the State pursuant to the Tennessee Human Rights Act (THRA), Tennessee Code Annotated § 4-20-191, et seq. , was dismissed by the Trial Judge for failure to state of cause of action. T.R.C.P. Rule12.02( 6) .
The Defendant was convicted by a Bradley County jury of second degree murder. The trial court sentenced him as a Range I standard offender to twenty-five years' incarceration. In this appeal as of right, the Defendant argues (1) that insufficient evidence was presented at trial to support his conviction; (2) that the trial court erred by failing to suppress his statement to police; (3) that the trial court erred by allowing into evidence autopsy photographs of the victim; (4) that the jury considered extraneous facts during deliberation and that the trial court erred in the manner in which it conducted a post-trial voir dire of the jury concerning this matter; and (5) that he was improperly sentenced. Having reviewed the record, we conclude (1) that sufficient evidence was presented to support the Defendant's conviction for second degree murder; (2) that the trial court did not err by allowing the Defendant's statement into evidence; (3) that the trial court did not err by admitting into evidence autopsy photographs of the victim; (4) that the record does not support the Defendant's allegation that jurors in his case were influenced by extraneous information and that the manner in which the trial court conducted a post-trial voir dire of the jurors concerning this matter was not improper; and (5) that the Defendant was properly sentenced. We thus affirm the judgment of the trial court.
Bradley
Court of Criminal Appeals
State of Tennessee v. Garland Godsey E2000-01944-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Leon C. Burns, Jr.
The defendant was tried and convicted of second degree murder in the Cumberland County Criminal Court in connection with an aggravated assault of a bar patron who died approximately one month later. The trial court sentenced the defendant as a violent offender to 25 years incarceration in the Tennessee Department of Correction. On appeal, the defendant takes issue with the trial court's failure to instruct the jury on "diminished capacity" and with the length of the sentence he received. Based upon our review, we affirm the judgment below.
This appeal from the Washington County Chancery Court concerns whether the Trial Court erred in refusing to allow the testimony of an expert witness in accordance with a local rule. The Appellant, Jami Allyson Ross Carter, appeals the decision of the Chancery Court. We vacate the decision of the Trial Court.
Defendant appeals from the dismissal of his petition for writ of habeas corpus. We conclude that the State of Tennessee never surrendered jurisdiction over defendant and that defendant's sentence did not expire. We accordingly affirm the judgment from the trial court.
Morgan
Court of Criminal Appeals
Ron M Artin v. Blount County , Tennessee E2000-01138-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: W. Dale Young, Circuit Court Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer appeals and contends the trial court erred in finding the employee to be 1 percent disabled because no expert medical proof established permanency of the disability. We sustain the contention of the employer and reverse the award of permanent disability. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Blount County Circuit Court Reversed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JR., JUSTICE, and JOHN K. BYERS, SR. J., joined. Michael K. Atkins, Knoxville, Tennessee, for the Appellant Blount County, Tennessee Kevin Shepherd, Maryville, Tennessee, for the Appellee Ron Martin MEMORANDUM OPINION Background Facts Plaintiff, Ron Martin (Martin) was employed by the Blount County Sheriff's Department as a criminal investigator on June 16, 1993. That day, Martin, in the course and scope of his employment, investigated a fire scene at Pope's Plant Farm. There is no 1 indication that Martin had any health problems prior to this time. While investigating the fire scene, Martin became ill. He also found evidence that Malathion and other pesticides were present in the building at the time of the fire. Martin returned to work the next day but went home after becoming sick at work. Martin first sought treatment from his family physician, Dr. Kim Cline. Later, Martin was seen by Dr. Marek Pienkowski, an immunologist. In the course of his treatment, Martin was also seen by Drs. Hargrove, Porter and Warwick, though no proof was submitted regarding either the treatment provided or the opinions formed by these physicians. An independent medical examination was performed by Dr. Arnold Hudson, Jr., a pulmonologist On November 8, 1993, according to Dr. Pienkowski, Martin reached maximum medical improvement. Martin returned to work with the only restriction being that "it is absolutely essential that he avoid all chemical exposure." This prevented Martin from resuming his duties as an arson investigator. For approximately one year, Martin remained with the Blount County Sheriff's department primarily performing clerical duties. From January 1995 through July 1997, Martin worked in various positions with the Blount County Court Clerk's office. Martin was employed by Blount County for almost four years after he reached maximum medical improvement before he was placed on disability retirement. From the date of exposure, Martin complained of joint pain, lethargy, and fatigue. These symptoms caused Martin to be unable to perform the light clerical duties he was assigned upon his return to the Sheriff's Department and resulted in him being placed in the Court Clerk's office. Despite being moved to another position, Martin remained unable to perform the tasks assigned to him. The parties stipulated the June 16, 1993 injury was compensable and agreed upon the appropriate compensation rate. No outstanding medical bills were left unpaid, nor were there any issues regarding the payment or non-payment of temporary total disability benefits. The only issue at trial was whether Martin suffers from a permanent vocational disability. As proof on this issue, the depositions of three physicians, Drs. Cline, Pienkowski, and Hudson, and two vocational experts, Drs. Nadolsky and Caldwell, were submitted, and the testimony of Martin and Dale Gorley, chief of detectives of the Blount County Sheriff's Department was heard. The trial court found that Martin suffers from a 1% total vocational disability. Blount County appeals this finding. Standard of Review The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and expert testimony. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999); Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 2
Blount
Workers Compensation Panel
Steven Ray Norfleet v. J. W. Goad Construction, Inc., M2001-00425-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol Catalano, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer and its insurer contend (1) the action is time barred, (2) the claim is barred by the plaintiff's failure to give timely notice, (3) the award of benefits is excessive, (4) the award of bad faith sanctions is erroneous, and (5) the trial court erred in awarding attorney fees for the collection of unpaid medical expenses. As discussed below, the panel has concluded the award of attorney fees against the employer should be vacated, and the judgment otherwise affirmed.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR, SP. J., joined. D. Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, for the appellants, J. W. Goad Construction, Inc., Sue Goad, Executrix for the estate of Jackie W. Goad, deceased, and Maryland Casualty Company. Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the appellee, Steven Ray Norfleet. MEMORANDUM OPINION 1 Because the Ru le 59 motio n has no t been add ressed by the trial c ourt, the appeal may be premature. However, because the injury occurred more than eight years ago, we have elec ted to add ress the m erits of the appeal. This case needs to be finally resolved. This civil action was commenced on October 1, 1996 following voluntary dismissal of a timely filed complaint on August 14, 1995. No issue was raised in the answer to the second complaint as to its timeliness. Following a trial on the merits on July 31, 2, the trial court awarded permanent partial disability benefits based on 63 percent to the body as a whole, discretionary costs, bad faith penalties, temporary total disability benefits and medical expenses. The judgment was filed on October 3, 2. On November 14, 2, the trial court awarded attorney fees of $19,5. pursuant to 5-6-24(b)(2).2 Although the defendant had filed a timely Tenn. R. Civ. P. 59 motion, the award of attorney fees appears from the record to be unrelated to that motion. On February 26, 21, the trial court ordered the appellants to provide medical treatment for the appellee, pending appeal. So did a Special Workers' Compensation Appeals Panel. At the time of the trial, the injured employee or claimant was 45 years old. He was injured on April 1, 1993, when he fell from a scaffold. The treating physician, Dr. Steven McLaughlin treated him for multiple injuries, including an elbow injury, a shoulder injury and carpal tunnel syndrome, all causally related to the fall, as well as a knee injury occurring during rehabilitation. Permanent impairment ratings of 5 percent to the elbow, 1 percent to the shoulder and 1 percent to the wrist were estimated by the doctor. The claimant has not returned to work for the same employer. Relying largely on the testimony of Dr. McLaughlin, the trial court awarded, inter alia, permanent partial disability benefits based on 63 percent to the body as a whole and temporary total disability benefits for 51 2/7th weeks. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. 2 (2) In addition to any attorney fees provided for pursuant to the provisions of _ 5 -6-22 6, a co urt ma y award attorney fees and reasonable costs to include reaso nable and nece ssary court repo rter expenses a nd exp ert witness fees for depo sitions and trials incurred when the employer fails to furnish appropriate med ical, surgica l and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial me mbe rs and other a ppa ratus to an employee provided for pursuant to a settlement or judgment under this chapter. -2-
