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McEwen v. Herman Jenkins Motors Inc.

August 13, 1999

JOSEPH D. MCEWEN, PLAINTIFF/APPELLANT,
v.
HERMAN JENKINS MOTORS, INC., DEFENDANT/APPELLEE



The opinion of the court was delivered by: Stafford, Special Judge

OBION COUNTY CHANCERY

HON. WILLIAM MICHAEL MALOAN, CHANCELLOR

MEMORANDUM OPINION

AFFIRMED

OPINION

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e) 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, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (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 worker's compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). However, considerable deference must be given to the trial Judge, who has seen and heard witnesses especially where issues of credibility and weight of oral testimony are involved. Jones v. Hartford Accident & Indem. Co., 811 S.W.2d 516, 521 (Tenn. 1991).

The trial court found that the plaintiff failed to prove that he suffered a compensable injury as the result of his hernia or his epididymitis. In an effort to avoid additional litigation, the trial court ruled that if its holding was incorrect, it would award the plaintiff a 25% permanent partial disability to the whole body. The plaintiff has appealed all of the trial court's findings. We find no error on the part of the trial court and affirm the judgment of dismissal.

FACTS

The plaintiff is a twenty-two-year-old male. He is a high school graduate who was working as a mechanic for the defendant when he was allegedly injured. The plaintiff has attended various automotive schools and seminars but has no other formal education. The plaintiff's vocational history consists primarily of manual labor employment.

The plaintiff alleges that he injured himself on July 5, 1994, while working on a minivan. He testified that he was attempting to lift a motor out of the minivan and felt a sharp burning pain in his side that went down into his testicles. He reported the injury to his supervisor, Steve Walker, and was seen by Dr. Bruce Brown the next day. The plaintiff subsequently had hernia surgery performed.

The plaintiff testified that he returned to work on September 19, 1994. While at work, he began hurting and told Mr. Walker he needed to go home. He has not returned to work since that time.

The plaintiff asserts that he is unable to work as a mechanic in his present condition because the job requires lifting and straining which causes pain. Prior to the injury, the plaintiff enjoyed hunting and fishing. He no longer hunts and when he does fish it is uncomfortable. He is unable to pick up anything at home or at work without discomfort.

The plaintiff purchased a Harley-Davidson motorcycle after his injury. He testified that he takes short trips on the motorcycle but that he does not ride it as much as he would like.

The plaintiff also owns the Past Time bar in Union City. Prior to the injury, the plaintiff essentially would perform all work necessary around the bar. This included taking the beer out, taking the garbage out and mopping the floor. He now claims that he is unable to do much of anything at the bar.

Steve Walker was the service manager for the defendant at the time of the injury. He is no longer employed by the defendant. Mr. Walker testified that the plaintiff was on vacation the week before his injury. After the plaintiff reported the injury to him, Mr. Walker inspected the vehicle that the plaintiff was working on and found that the engine bolts had not been removed from the frame of the vehicle so that the engine could not be removed.

After the plaintiff was released to return to work, Mr. Walker testified that he told the plaintiff that there were several jobs available for him which did not require lifting. Mr. Walker testified that the plaintiff never returned to work and that the plaintiff told him that his doctor would not release him to return to work.

MEDICAL EVIDENCE

The plaintiff was initially seen by Dr. Bruce Brown on July 6, 1994. Dr. Brown is board certified in family practice medicine. The plaintiff informed Dr. Brown that he was experiencing pain in his right groin that radiated into his testicles on both sides and that this had been going for approximately two weeks. He also told Dr. Brown that he had to lift and push heavy motors and wondered if that might be the cause of the pain. The plaintiff told Dr. Brown that he had been off work for one week and that while he was resting, his condition was better but that he had gone back to work the day before and started hurting again. He had not been having any symptoms until two weeks earlier. Dr. Brown testified that the plaintiff did not recall any acute, sudden onset of pain and that he wasn't having any symptoms such as difficulty urinating.

Upon physical examination, Dr. Brown found that the plaintiff had a slight degree of tenderness over his lower abdomen but basically that was all. He had a little bit of tenderness on the hernia exam but Dr. Brown was unable to find any hernia he could palpate. Dr. Brown believed that the plaintiff had an abdominal wall muscle strain with pain radiating into his groin. He did not believe that the plaintiff had a hernia. He prescribed a muscle relaxant and told the plaintiff to wear an athletic supporter. Dr. Brown placed the plaintiff on light duty lifting status for two weeks and told him not to lift any more than twenty pounds.

Dr. Brown saw the plaintiff again on July 19, 1994. The plaintiff was still complaining of pain in the lower right abdomen radiating into the right area of the scrotum. Dr. Brown still did not diagnose the plaintiff with a hernia. Dr. Brown continued the lifting restriction and placed the plaintiff on an anti-inflammatory medicine and a pain reliever.

Dr. Brown did not diagnose the plaintiff with epididymitis and is unaware of it being caused by any heavy lifting incidents. He testified that epididymitis can be caused by viral or bacterial origin. He further testified that he did not notice the plaintiff having any tenderness over the epididymis.

On August 1, 1994, the plaintiff was seen by Dr. Robert Sanner. The plaintiff was referred to Dr. Sanner by Dr. Brown. On exam, Dr. Sanner found a small right inguinal hernia that was palpable. He performed surgery on the plaintiff to repair the hernia.

Dr. Sanner testified that the repair of the hernia seemed good and solid and that he released him to return to work eleven days later. He advised the plaintiff to avoid very strenuous activities initially but work back toward normal activity. He scheduled no return appointment for the plaintiff.

On September 23, 1994, the plaintiff returned to see Dr. Sanner complaining bitterly about pain in the wound running down into his testicle. The plaintiff stated that the pain was worse with activity. Dr. Sanner examined the plaintiff but did not find any signs that the plaintiff had epididymitis. He saw the plaintiff again four days later with the plaintiff still complaining of pain but now stating the pain had developed on the left side as well as the right. Upon examination, Dr. Sanner found no evidence of any recurrent hernia, no hernia on the left and that the testicles were bilaterally essentially normal. The plaintiff did not seem to be more tender on one side or the other.

Dr. Sanner next saw the plaintiff on December 1, 1994. The plaintiff still had pain bilaterally running into his testicles. The plaintiff's examination was normal. Dr. Sanner thought that the plaintiff might have a ...


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