Gary Charles Hill v. Insurance Company of North America

IN THE SUPREME COURT OF TENNESSEE
WORKERS' COMPENSATION APPEALS PANEL
KNOXVILLE, JUNE 1998 SESSION
FILED
November 2, 1998
GARY CHARLES HILL ) RHEA CHANCERY Cecil Crowson, Jr.
) Appe llate Court C lerk
Plaintiff/Appellee )
)
V. ) Hon. Jeffrey F. Stewart,
) Chancellor
INSURANCE COMPANY OF NORTH )
AMERICA )
)
Defendant/Appellant ) No. 03S01-9712-CH-00150
For the Appellant: For the Appellee:
F. R. Evans Thomas L. Wyatt
800 First Tenn. Bldg. 500 Lindsay Street
Chattanooga, Tenn. 37402 Chattanooga, Tenn. 37402
MEMORANDUM OPINION
Members of Panel:
William M. Barker, Justice
Joe C. Loser, Special Judge
Roger E. Thayer, Special Judge
AFFIRMED. THAYER, Special Judge
This workers' compensation appeal has been referred to the Special Workers'
Compensation Appeals Panel of the Supreme Court 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 trial court awarded the employee, Gary Charles Hill, 10% permanent
partial disability to the body as a whole. The insurance carrier, Insurance Company
of North America, has appealed contending the evidence does not support a finding
of permanent disability.
Employee Hill was 41 years of age at the time of the incident in question and
was a high school graduate. A great deal of his work experience has been as a
painter but he has operated construction equipment and worked as a carpenter. He
had been employed by Raytheon since 1994 and was doing industrial painting on
about February 16, 1995. He testified he was operating a grinder under a large-like
air compressor when he felt a pull in a muscle. When this pain occurred he was
lying down in a somewhat twisted position and was working over his head.
He reported the incident to his employer and was given a list of three
physicians. He chose Dr. Lester F. Littell and saw him on March 2, 1995. Dr. Littell
told him he had a pinched nerve and would probably need surgery. Hoping to avoid
surgery, he went to see a private physician, Dr. Ernest Forsten. Dr. Forsten
scheduled an M.R.I. examination and later referred him to Dr. Larry Gibson, a
neurologist.
Plaintiff continued to work with his complaints and was terminated from
employment on August 22, 1995. His employer told him the termination was due to
his “arrest record.” At the trial he told the court the accident caused neck pain and
numbness in some of his fingers and thumb. He said he felt his recovery was about
75% back to normal status but he was still having pain in the back of his shoulder
and down his left arm. He said he could not return to industrial painting work but he
had worked at small painting jobs such as painting bedrooms, porches, fences, etc.
All of the expert medical testimony was presented by deposition.
Dr. Larry Gibson testified plaintiff had damage or a pinching of his 6th and 7th
nerve with subsequent weakness in the left triceps. He stated a nerve conduction
study confirmed the diagnosis. Testing also revealed a bulging disc which was due
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to the aging process. He opined the nerves were pinched while he was working in
the awkward position. He gave a 15% medical impairment and imposed work
restrictions of not working over his shoulders. He also said he should not lift over 20-
25 pounds. He was of the opinion that surgery would not improve his condition.
Dr. Lester F. Littell, an orthopedic surgeon, saw plaintiff on several visits and
would be classified as the treating physician. His diagnosis was cervical nerve pain
but was of the opinion there was no impairment. He noted the M.R.I. results
indicated a bulging disc which was due to age changes but he did restrict his work
activities so he would not do overhead work.
Dr. Hytham A. Kadrie, a neurologist, examined plaintiff at the request of a Dr.
Louis Carter (who did not testify). He performed a nerve conduction study, etc. and
was of the opinion there was no nerve damage. Thus, he did not find any medical
impairment.
Our review of the case is de novo accompanied by a presumption of the
correctness of the findings of fact unless the preponderance of the evidence is
otherwise. T.C.A. § 50-6-225(e)(2).
If there is conflicting medical testimony on causation of any injury, the trial
judge has discretion to conclude that the opinion of a particular expert should be
accepted over that of another expert and that one expert’s testimony contains a
more probable explanation than another expert’s testimony. Thomas v. Aetna Life &
Cas. Co., 812 S.W.2d 278 (Tenn. 1991).
The trial court was confronted with conflicting medical opinions regarding
plaintiff’s condition and accepted the opinion of Dr. Gibson as opposed to the other
evidence in the case. In weighing the evidence, the court noted that Dr. Littell did
not document his observations as carefully as Dr. Gibson.
From our independent examination of the record, we cannot conclude the
evidence preponderates against the findings of the trial court. Therefore, the
judgment is affirmed with costs of the appeal taxed to defendant insurance company.
___________________________________
Roger E. Thayer, Special Judge
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CONCUR:
________________________________
William M. Barker, Justice
________________________________
Joe C. Loser, Special Judge
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
GARY CHARLES HILL, ) RHEA CHANCERY
) No. 8451
Plaintiff-Appellee, )
)
) No. 03S01-9712-CH-00150
v. )
)
) Hon. Jeffrey F. Stewart,
INSURANCE COMPANY OF NORTH ) Chancellor
AMERICA )
)
Defendant-Appellant. )
JUDGMENT ORDER
T h i s c a s e i s b e f o r e t h e C o u r t u p o n t h e e n t i r e
r e c o r d , i n c l u d i n g t h e o r d e r o f r e f e r r a l t o t h e
S p e c i a l W o r k e r s ' C o m p e n s a t i o n A p p e a l s P a n e l , a n d t h e
P a n e l ' s M e m o r a n d u m O p i n i o n s e t t i n g f o r t h i t s f i n d i n g s
o f f a c t a n d c o n c l u s i o n s o f l a w , w h i c h a r e i n c o r p o r a t e d
h e r e i n b y r e f e r e n c e ;
W h e r e u p o n , i t a p p e a r s t o t h e C o u r t t h a t t h e
m e m o r a n d u m O p i n i o n o f t h e P a n e l s h o u l d b e a c c e p t e d a n d
a p p r o v e d ; a n d
I t i s , t h e r e f o r e , o r d e r e d t h a t t h e P a n e l ' s
f i n d i n g s o f f a c t s a n d c o n c l u s i o n s o f l a w a r e
a d o p t e d a n d a f f i r m e d , a n d t h e d e c i s i o n o f t h e P a n e l i s
m a d e t h e J u d g m e n t o f t h e C o u r t .
C o s t s o n a p p e a l a r e t a x e d d e f e n d a n t / a p p e l l a n t ,
I n s u r a n c e C o m p a n y o f N o r t h A m e r i c a a n d F . R . E v a n s ,
S u r e t y , f o r w h i c h e x e c u t i o n m a y i s s u e i f n e c e s s a r y .
1 1 / 0 2 / 9 8
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