Bowers v. G. Beeler Auto Delivery, Inc., No. E2005-02006-WC-R3-CV (Tenn. 10/30/2006)
| Decision Date | 30 October 2006 |
| Docket Number | No. E2005-02006-WC-R3-CV.,E2005-02006-WC-R3-CV. |
| Parties | KELLY LEE BOWERS v. G. BEELER AUTO DELIVERY, INC. |
| Court | Tennessee Supreme Court |
Pamela B. Johnson and Kenny L. Saffles, Knoxville, Tennessee, for the Appellant, G. Beeler Auto Delivery, Inc.
Tony Farmer and John P. Dreiser, Knoxville, Tennessee, for the Appellee, Kelly Lee Bowers.
Sharon G. Lee, Sp.J., delivered the opinion of the court, in which E. Riley Anderson, J., and Roger E. Thayer, Sp.J., joined.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Chancellor determined that the plaintiff was permanently and totally disabled as a result of his work-related injury. The defendant appeals, arguing that the evidence preponderates against the trial court's determination of disability. After careful review of the record and applicable authorities, we find no error and affirm the judgment.
Kelly Lee Bowers injured his neck on January 27, 2001 while attempting to secure a vehicle onto a transport trailer during the course and scope of his employment with the defendant, G. Beeler Auto Delivery, Inc. Mr. Bowers reported the injury to his employer and was seen at a walk-in medical clinic. Subsequently Mr. Bowers was treated by a neurosurgeon who diagnosed a herniated disc at C-5 and performed a surgical fusion. Later Mr. Bowers developed problems relating to the C-3 and C-6 discs and had two additional surgeries. Mr. Bowers received various other treatments, including physical therapy, caudal blocks and prescription medication. Mr. Bowers did not return to work for the defendant and was not working at the time of trial.
Mr. Bowers filed a complaint seeking workers' compensation benefits. The compensability of the injury was not disputed, only the extent of the disability. Following a trial, the Chancellor determined that Mr. Bowers was permanently and totally disabled.
Our standard of review of factual issues in a workers' compensation case is de novo upon the record, accompanied by a presumption of correctness of the trial court's factual findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); see also Rhodes v. Capital City Ins. Co., 154 S.W.3d 43, 46 (Tenn. 2004); Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 825-26 (Tenn. 2003). When the trial court has seen the witnesses and heard the testimony, the appellate court must extend considerable deference to its findings, especially where issues of credibility and the weight of testimony are involved. However, when medical proof is presented by deposition, the reviewing court may draw its own conclusions about the weight and credibility of the expert testimony, since it is in the same position as the trial judge for evaluating such evidence. Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729 (Tenn. 2002). Under this standard of review, we are required "to weigh in more depth factual findings and conclusions of trial judges in workers' compensation cases." Compare Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315 (Tenn. 1987), with Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 901-02 (Tenn. 1984) (). Our standard of review of questions of law is de novo without a presumption of correctness. Smith v. U.S. Pipe & Foundry Co., 14 S.W.3d 739, 742 (Tenn. 2000).
The issue on appeal is whether the evidence preponderates against the trial court's findings that the plaintiff was 100 percent disabled.
The trial court determined that Mr. Bowers was permanently and totally disabled. The defendant takes issue with this ruling, arguing that the only testimony at trial that the plaintiff was unable to return to gainful employment came from Mr. Bowers, whose testimony was contradicted by expert medical proof and was inadequate to support a finding of total disability. The defendant also contends that the trial court failed to take into account a prior workers' compensation injury sustained by Mr. Bowers which resulted in a disability rating.
Mr. Bowers' proof at trial consisted of the deposition of his treating physician, Dr. Lary A. Schulhof, a board-certified neurosurgeon; the deposition of Dr. William E. Kennedy, an orthopedic surgeon who examined Mr. Bowers at the request of his attorney; and the testimony of Mr. Bowers. The defendant's proof consisted of the deposition testimony of Dr. Fred A. Killeffer, a neurosurgeon who evaluated Mr. Bowers at the request of the defendant.
Dr. Schulhof's testimony related to his treatment of Mr. Bowers and his opinion that Mr. Bowers' neck problems were more likely than not caused by the January 2001 accident. For the purposes of this appeal, the defendant does not take issue with the trial court's ruling that all three surgeries were work-related. Dr. Schulhof was not asked for his opinion regarding Mr. Bowers' medical impairment or whether he had any work restrictions.
According to Dr. Kennedy, a board-certified orthopedic surgeon and independent medical examiner, Mr. Bowers related a history of a painful pop in his neck on January 27, 2001, while reaching to his left pulling a chain diagonally. His treating physician at that time confirmed by medical testing that Mr. Bowers had a herniated disc at the C-5 level. An anterior cervical diskectomy and fusion at C-5 was performed. Subsequent testing also indicated a bone spur with foraminal narrowing at C-3 and moderate degeneration at C-6. Surgical decompression was then performed at the C-3 and C-6 levels. Mr. Bowers informed Dr. Kennedy that he had constant pain in his neck, left shoulder and upper arm; intermittent activity-related pain with numbness and tingling in the left forearm and particularly in the left index and ring fingers; and activity-related pain in his right shoulder. The plaintiff noted that sitting and standing longer than five minutes at a time or walking longer than ten minutes at a time regularly increased his symptoms. Mr. Bowers further claimed that riding in or driving in a vehicle longer than forty-five minutes increased the symptoms; as did any attempts at stooping, twisting, bending, kneeling, leaning, pulling, reaching, squatting and lifting and carrying more than about ten pounds at a time. The plaintiff also related that he experienced a loss of appetite and difficulty sleeping. After the accident, Mr. Bowers stated that he no longer engaged in fishing, tennis, softball, hunting, running, hiking and playing with his daughter.
Dr. Kennedy determined that Mr. Bowers had a 28 percent permanent physical impairment to the body as a whole as a result of the accident. He also assigned the following permanent restrictions: (1) no vigorous lifting or pulling, maximum reaching, or rapid repetitive motion of his upper extremities; (2) no attempting to hold his head other than the comfortable neutral position, as in looking forward, for prolonged periods; (3) no working in rough terrain or in rough vehicles; (4) no working with his hands raised above the level of his shoulders or engaging in any jerking or hammering motions; and (5) no lifting and carrying of more than twenty pounds occasionally or ten pounds frequently.
Mr. Bowers was 39 years old at the time of trial. Although he had dropped out of school in the 10th grade, Mr. Bowers later earned his General Equivalency Degree (GED) and received training in aircraft maintenance while serving in the Navy. His past work experience had been primarily as a truck driver hauling vehicles, but he had also worked briefly as a mechanic, a dry wall hanger and as a bartender.
Since his accident, Mr. Bowers testified that he experiences headaches all the time, chronic pain in his neck and shoulders, and neck stiffness. The plaintiff noted that it hurts his neck to look down, to turn his head, to sit and/or to stay on his feet for too long a period of time, and to bend over and to twist. He also complained of chronic back pain, along with weakness, decreased strength, and loss of mobility in his left arm. Mr. Bowers asserted that at night he is only able to sleep for two hours at a time. The plaintiff indicated that he takes hydrocodone, a narcotic pain reducer, and soma, a muscle relaxer, which make him feel tired and adversely affect his ability to focus and concentrate. Mr. Bowers insisted that while he wants to work, he did not know of any job he could do on a forty-hour-per-week basis. Mr. Bowers claimed his physical problems and use of hydrocodone prevented him from doing the work he did before the accident.
Mr. Bowers was not employed at the time of the trial. On two occasions since the January 2001 injury, he attempted to assist his brother in "cleaning up ... construction," by "sweeping and picking up for him." According to Mr. Bowers, he was able to do this type of work for two or three days a week, but only "for maybe two weeks in a row." Mr. Bowers claimed he could not sustain such efforts because "my body wouldn't allow me to ... I hurt too bad."
Dr. Frederick A. Killeffer, a board-certified neurosurgeon who examined Mr. Bowers at the request of the employer, opined in his deposition testimony that the plaintiff had a 17 percent permanent impairment to the body as a whole, assuming that all three...
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