Kenneth Kerr v. Municipal Corp.

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. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial judge entered a judgment in favor of the plaintiff and fixed his recovery at 25 percent permanent partial disability to the body as a whole. The defendant says the evidence preponderates against the judgment. We agree with the defendant and reverse the judgment and dismiss this case. On July 11, 1994, the plaintiff was involved in an automobile accident while in the course of his employment with the defendant. The plaintiff was treated by Dr. Archer W. Bishop, Jr., an orthopedic surgeon, whose report was submitted as medical evidence in the case. Dr. Bishop's report, in essence, shows that the plaintiff had some degenerative disc disease and that he had some temporary symptoms as a result of the accident but no permanent effects therefrom. Dr. Bishop found the plaintiff had a five percent medical impairment as a result of the degenerative disc disease but no impairment as a result of the accident. The plaintiff testified concerning pain and difficulties which he was having. This is called greatly into question by Dr. Bishop's findings concerning pain: He states that he is having severe pain in his back. He even described pain in his hair, in his neck and in his skin. He seems to have complaints that outweigh his findings. Because of the complaints of pain, Dr. Bishop had an MRI done on the plaintiff. This showed no support for the plaintiff's complaints of pain. The plaintiff sought the opinion of Dr. Wade H. Penny, III, an orthopedic surgeon. Dr. Penny's report is not enlightening. It is somewhat vague as to the 2