Tony Bilbrey v. Kenneth O. Lester Co., Inc.

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) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. The trial court found that the employer had made voluntary medical payments within one year of the filing of suit; that the statute of limitations had not expired; and that the plaintiff suffered a work related back injury. The trial court fixed plaintiff's disability at 22-1/2 percent to the body as a whole. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL N. PEOPLES, SP. J., joined. John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester Co., Inc. Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey. OPINION Tony Bilbrey filed this workers' compensation action on May 21, 1998. In his complaint, he alleged that he suffered a back injury on November 12, 1996 as he was unloading a truck in Marietta, Georgia, while making a delivery for his employer, Kenneth O. Lester Co., Inc. Bilbrey testified that he reported his injury to one of his dispatcher / supervisors (either Midgett or McKee) immediately upon returning to Tennessee. Bilbrey further testified that his supervisor advised him that Mr. Roberts, the employer's workers' compensation supervisor, would set up an appointment for him with Dr. Roy Johnson. Although Bilbrey testified that he did not speak directly to Roberts, someone with the employer made an appointment for him with Dr. Johnson for December 24, 1996. Bilbrey was advised of and kept this appointment. Bilbrey saw Dr. Johnson "six or eight times." On November 1, 1997, Dr. Johnson referred Bilbrey to Dr. Robert Stein, an orthopedic surgeon. Dr. Johnson's medical records indicated that the employer had authorized treatment and that Bilbrey's medical bills were paid, some by the employer and some by Kemper, the employer's workers' compensation insurer. Dr. Stein saw Mr. Bilbrey for an orthopedic consultation on November 17, 1997. Dr. Stein found no compression fracture but believed that Bilbrey was symptomatic from an acute nerve impingement. From the history conveyed by the patient, Dr. Stein related Bilbrey's condition to the November, 1996 injury. Dr. Stein fixed Bilbrey's impairment at three percent to the body as a whole. Mr. Bilbrey was later treated by Dr. Roy Terry, an orthopedic surgeon in Lebanon, who found a compression fracture of L5-S1, which he also related by history, to the November, 1996 injury. Dr. Terry assigned Bilbrey a permanent impairment rating of fifteen percent to the body. Bilbrey's testimony that he was injured on November 12, 1996 sharply conflicted with the testimony of his co-driver, Randy Short. The trip logs indicate that Short accompanied Bilbrey on his deliveries to Marietta, Georgia on November 12, 1996. Short remembered no fall or apparent injury suffered by Bilbrey during this trip, but testified that Bilbrey had complained that "his back was bothering him from cutting some cedar trees or something on his place." Bilbrey's testimony that he reported the injury to Midgett or McKee also conflicted with the testimony of each of those supervisors. Each testified that Bilbrey did not report an injury and that they made no arrangement for a doctor's appointment for Bilbrey. Roberts, the employer's workers' compensation supervisor, also denied making a medical appointment for Bilbrey or authorizing his treatment. He conceded, however, that someone from Lester may have authorized treatment.