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Harris v. Adkins

April 07, 1999

NATHAN V. HARRIS, PLAINTIFF-APPELLEE,
v.
WENDEL ADKINS D/B/A TENNESSEE RIDERS, INC., VALIANT INSURANCE COMPANY AND STEPHEN N. CIANCIO, DEFENDANTS-APPELLANTS



DAVIDSON CIRCUIT No. Below 96C-1819

The opinion of the court was delivered by: Loser, Judge

SPECIAL WORKERS' COMPENSATION APPEALS JUDGES AT NASHVILLE

(January 19, 1999 Session)

Hon. Hamilton V. Gayden Jr., Judge.

MEMORANDUM OPINION

Members of Panel: Adolpho A. Birch, Jr., Associate Justice James L. Weatherford, Senior Judge Joe C. Loser, Jr., Special Judge

AFFIRMED

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and Conclusions of law. The employer and its insurer contend in this appeal that the trial court erred in awarding the medical expenses of a nonauthorized provider and that the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed.

The employee or claimant initiated this civil action to recover medical and disability benefits for injuries resulting from a work related accident which occurred on May 23, 1995. After a benefit review conference and trial, the trial court awarded, inter alia, medical expenses and disability benefits based on sixty percent to the body as a whole. Our review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 50-6-225(e)(2).

At the time of the trial, the claimant was thirty years old with a high school education and vocational training in automobile repair. He was in good health before the accident.

On the date of the accident, the claimant was working for the employer, Tennessee Riders, operating a mower next to I-40 when his tractor was struck from the rear by a speeding pick-up truck. The truck's bumper struck him in the back and its hood struck him in the head. He was soon transported to the emergency room at St. Thomas Hospital in Nashville, where he was treated and released.*fn1 When the accident occurred, his supervisor, Wendell Adkins, was operating a mower about one hundred yards ahead of him, but did not talk to him at the scene. However, two co-workers visited the claimant to inquire about his condition soon after the accident. He has not returned to work for Tennessee Riders.

When his condition worsened, he contacted Dr. Melvin Law, who diagnosed S1 radiculopathy and two bulging discs with nerve root impingement. The doctor provided conservative care, including a back brace, and referred the claimant to a neurologist. Dr. Law assessed his permanent impairment at ten percent to the whole body and restricted him from lifting more than twenty pounds, thirty minutes of continuous standing and walking and thirty minutes of continuous sitting.

The neurologist, Dr. Morgan, advised him not to return to work as a mower operator. This doctor diagnosed disequilibrium, post-concussive syndrome and intermittent paresthesias of the hands, possibly resulting from a mild spinal cord contusion or brachial plexus stretch type injury and assessed his permanent medical impairment at fourteen percent to the whole body, of which nine percent was from persistent labyrinthine vertigo. Dr. Morgan restricted the claimant from repetitive bending or prolonged standing of ...


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