Humphrey v. David Witherspoon, Inc.

• Decision Date: 27 July 1987
• Docket Number: No. 38,38
• Citation: 734 S.W.2d 315
• Parties: Allen C. HUMPHREY, Jr., Plaintiff/Appellee, v. DAVID WITHERSPOON, INC., and Travelers Insurance Company, Defendants/Appellants.
• Court: Tennessee Supreme Court

Page 315

734 S.W.2d 315

Allen C. HUMPHREY, Jr., Plaintiff/Appellee, v. DAVID WITHERSPOON, INC., and Travelers Insurance Company Defendants/Appellants.

No. 38

Supreme Court of Tennessee at Knoxville.

July 27, 1987.

Arthur G. Seymour, Jr., Knoxville, for defendants/appellants.

W. Clark Meredith, Oak Ridge, for plaintiff/appellee.

OPINION

HARBISON, Justice.

The employer and its insurance carrier have appealed from an award of workers' compensation benefits to appellee based upon an admittedly compensable accident which he sustained on September 24, 1985. The employer raises four issues, some of which in our opinion require further consideration by the trial court. Under these circumstances a motion made on behalf of appellee to tax appellants with costs for a frivolous appeal is denied.

Since the accident occurred after July 1, 1985, the scope of review in this Court on issues of fact is

"... de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." T.C.A. § 50-6-225(e).

This standard of review differs from that previously provided and requires this Court to weigh in more depth factual findings and conclusions of trial judges in workers' compensation cases. Where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, on review considerable deference must still be accorded to those circumstances. In the present case, however, some of the issues involve expert medical testimony. All of the medical proof was taken by deposition or was documentary, so that all impressions of weight and credibility must be drawn from the contents thereof, and not from the appearance of witnesses on oral testimony at trial.

Appellee was approximately thirty-seven years of age at the time of trial and was a high school graduate. He had taken two years of technical training following high school and had had several other courses in technical or vocational subjects. Most of his work career had been in unskilled or manual labor. He was considerably overweight but had no prior history of back injury or other serious health problems.

At the time of his accident in September 1985 appellee was a truck driver for David Witherspoon, Inc., which dealt in scrap metal. The vehicle which appellee was driving when he was injured was similar to a garbage "dumpster", except that the metal container which could be attached or detached from the truck was designed to accommodate scrap metal. While disengaging a heavy container of this type, appellee sustained an admittedly compensable injury to his back. The "pan" or container slipped as it was being raised, causing appellee's truck to vibrate sharply. Apparently the front of the truck came off the ground and appellee sustained a rather severe jolt.

He saw several physicians during the next month. On October 25, 1985, he came under the care of Dr. Dennis Coughlin, an orthopedic specialist. Dr. Coughlin and his associates continued to see and treat appellee through January 1986. During that time he received fourteen treatments by physical therapists. He was thoroughly x-rayed and examined, but Dr. Coughlin was unable to find any objective evidence of any type of serious injury to the low back or to the vertebral discs. He diagnosed appellee as suffering from a low back or lumbar strain.

On November 15, 1985, Dr. Coughlin released appellee to return to work, and apparently appellee did so for several weeks. At the end of January Dr. Coughlin was again of the opinion that appellee could return to work and that he had sustained no permanent partial disability as a result of the September 1985 accident.

This view was shared by a number of other orthopedic specialists who examined appellee in the months between September 1985 and March 1986. Correspondence and hospital records containing reports from these physicians were admitted as a group exhibit.

In his brief, counsel for appellee questions the admissibility of a number of these documents and reports. The record, however, is as follows:

"MR. SEYMOUR: I have these medical reports of Morris, McNeeley and Fardon.

Mr. Meredith: I don't have any objection, Your Honor."

Accordingly the attempt of counsel for appellee to object to these records and reports on appeal is not well taken. They were admitted into evidence without objection or qualification, and certainly, in addition to the deposition of Dr. Coughlin, must be given consideration. ¹

Several of the physicians felt that appellee probably had some sort of psychological overlay or emotional reaction to his injury, because none of them could find any objective medical basis for his continued complaints. All felt that he had sustained a lumbar strain or sprain, but nothing more, and that this should clear without any permanent impairment. Appellee was examined in all by seven medical doctors, not all of whom testified or gave a report. All of those who did express opinions, however, found no evidence of permanent partial disability.

In April 1986, still contending that he was unable to return to work and that he was suffering from severe back pain, appellee consulted two chiropractors, one of whom treated him only briefly. The other, Frank Gossman, a young chiropractor who had been practicing in Tennessee for only a few days when he was first contacted by appellee, treated him during May, June and July, 1986. He expressed the opinion that appellee did sustain some permanent partial disability to the body as a whole as a result of his accident, and he rated this at ten percent.

The trial judge found from all the proof that appellee had sustained twenty percent permanent partial disability to the body as a whole as the result of the September 1985 accident, and he awarded benefits accordingly. The trial judge also awarded temporary total disability benefits from the date of the accident, September 24, 1985, through June 10, 1986, together with all medical and hospital expenses not previously paid, including those of the chiropractor.

The award of temporary total disability benefits appears to be inaccurate. Appellee's own testimony was that he worked for several weeks between November 1985 and February 1986. Obviously he is not entitled to an award of temporary total disability benefits during the period of time when he was working and drawing his salary. It should be an easy matter for the parties to agree upon those weeks during which a...