Steven Ray Norfleet v. J. W. Goad Construction, Inc.,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer and its insurer contend (1) the action is time barred, (2) the claim is barred by the plaintiff's failure to give timely notice, (3) the award of benefits is excessive, (4) the award of bad faith sanctions is erroneous, and (5) the trial court erred in awarding attorney fees for the collection of unpaid medical expenses. As discussed below, the panel has concluded the award of attorney fees against the employer should be vacated, and the judgment otherwise affirmed.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR, SP. J., joined. D. Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, for the appellants, J. W. Goad Construction, Inc., Sue Goad, Executrix for the estate of Jackie W. Goad, deceased, and Maryland Casualty Company. Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the appellee, Steven Ray Norfleet. MEMORANDUM OPINION 1 Because the Ru le 59 motio n has no t been add ressed by the trial c ourt, the appeal may be premature. However, because the injury occurred more than eight years ago, we have elec ted to add ress the m erits of the appeal. This case needs to be finally resolved. This civil action was commenced on October 1, 1996 following voluntary dismissal of a timely filed complaint on August 14, 1995. No issue was raised in the answer to the second complaint as to its timeliness. Following a trial on the merits on July 31, 2, the trial court awarded permanent partial disability benefits based on 63 percent to the body as a whole, discretionary costs, bad faith penalties, temporary total disability benefits and medical expenses. The judgment was filed on October 3, 2. On November 14, 2, the trial court awarded attorney fees of $19,5. pursuant to 5-6-24(b)(2).2 Although the defendant had filed a timely Tenn. R. Civ. P. 59 motion, the award of attorney fees appears from the record to be unrelated to that motion. On February 26, 21, the trial court ordered the appellants to provide medical treatment for the appellee, pending appeal. So did a Special Workers' Compensation Appeals Panel. At the time of the trial, the injured employee or claimant was 45 years old. He was injured on April 1, 1993, when he fell from a scaffold. The treating physician, Dr. Steven McLaughlin treated him for multiple injuries, including an elbow injury, a shoulder injury and carpal tunnel syndrome, all causally related to the fall, as well as a knee injury occurring during rehabilitation. Permanent impairment ratings of 5 percent to the elbow, 1 percent to the shoulder and 1 percent to the wrist were estimated by the doctor. The claimant has not returned to work for the same employer. Relying largely on the testimony of Dr. McLaughlin, the trial court awarded, inter alia, permanent partial disability benefits based on 63 percent to the body as a whole and temporary total disability benefits for 51 2/7th weeks. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. 2 (2) In addition to any attorney fees provided for pursuant to the provisions of _ 5 -6-22 6, a co urt ma y award attorney fees and reasonable costs to include reaso nable and nece ssary court repo rter expenses a nd exp ert witness fees for depo sitions and trials incurred when the employer fails to furnish appropriate med ical, surgica l and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial me mbe rs and other a ppa ratus to an employee provided for pursuant to a settlement or judgment under this chapter. -2-