Johnny Ownby v. National American Insurance Company

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 trial court awarded plaintiff 48% permanent partial disability to the body as a whole at a compensation rate of $266.66 per week. Defendant challenges the amount of disability awarded, the compensation rate applied and certain discretionary costs awarded. Plaintiff, 37, graduated from high school. Most of his work experience has been in heavy construction labor. He testified that he injured his lower back on July 4, 1994, while digging up an asphalt driveway and loading the asphalt chunks onto a truck for defendant's insured. He worked on light duty until October but has not worked since October.1994. Plaintiff was treated by Alan L. Whiton, M.D., an orthopedist, who testified in this case by deposition. He opined that plaintiff had a disruption or internal cracking of L4-L5 based upon the results of a discogram. He assigned plaintiff a five percent permanent impairment rating to the body as a whole according to the AMA Guides. George B. Brooks, D.O., a family practitioner, examined the plaintiff at the request of his attorney. He diagnosed degenerative disc disease with radiculopathy at L4-5 by history. He assigned a ten percent impairment rating according to the American Orthopedic Academy guidelines. He testified that he would not disagree with Dr. Whiton's five percent impairment rating but that he also considered that plaintiff had over six months of subjective complaints of pain. He further testified that some portion of his impairment rating was attributable to degenerative changes that predated plaintiff's work-related injury, but he could not apportion it. Fred A. Killefer, M.D., neurosurgeon, examined plaintiff at the request of the defendant. He found no objective signs of a permanent injury and opined that plaintiff had a normal spine with subjective complaints of pain. He further opined 2