Bailey v. Colonial Freight Systems, Inc.

836 S.W.2d 554, 1992 Tenn. LEXIS 488
CourtTennessee Supreme Court
DecidedJuly 20, 1992
StatusPublished
Cited by14 cases

This text of 836 S.W.2d 554 (Bailey v. Colonial Freight Systems, Inc.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Colonial Freight Systems, Inc., 836 S.W.2d 554, 1992 Tenn. LEXIS 488 (Tenn. 1992).

Opinion

OPINION

ANDERSON, Justice.

In this workers’ compensation appeal, the trial court awarded 65 percent permanent partial disability to the body as a whole and commuted the award to a lump sum. The defendant concedes the employee suffered a compensable injury and questions only the amount of the disability award and whether it should have been commuted to a lump sum. We conclude that the amount of the award is correct, but that it should be paid periodically and not in lump sum.

FACTUAL BACKGROUND

The plaintiff, Donald Ray Bailey, aged 47, was, at the time of the accident, employed as a truck driver by Colonial Freight Systems, Inc. On April 23,1990, in Salem, Indiana, the plaintiff was removing boxes of meat from his truck, stacking them on pallets, when a pallet broke and he “felt a pull in his back and then went to the floor.” Medical treatment was obtained locally. The plaintiff then returned to Tennessee, where he was seen by Dr. George Stevens, an orthopedic surgeon in Oak Ridge, Tennessee, on April 27, 1990. Dr. Stevens diagnosed his difficulty as a lumbar strain, treated him with medication and physical therapy, and released him to return to work in late May of 1990. Working caused him difficulty, and he returned in July for treatment. Dr. Stevens took him off work, prescribed therapy, and concluded at the end of three weeks that he could not return to work as a long-haul truck driver at that time.

After resuming work for four more weeks, the plaintiff continued to experience back pain. He then was referred by his employer to Dr. William Kevin Bailey, a Knoxville orthopedic surgeon, who found that the plaintiff had degenerative disc disease and treated him for the next several months. Permanent partial disability of 3-5 percent to the body as a whole was assessed by Dr. Bailey, who also concluded that the plaintiff could not lift more than 25 pounds, nor could he return to his previous employment as a truck driver.

Dr. William Kennedy, an orthopedic surgeon in Johnson City, Tennessee, evaluated the plaintiff in January and August of 1991; found that he had degenerative disc disease aggravated by trauma and a 50 percent range of motion; assessed a 19 [556]*556percent permanent partial disability to the body as a whole; and restricted him from repeated bending, stooping or squatting, heavy lifting, and walking over rough terrain.

A physical therapist, Kelly Lenz, also evaluated the plaintiff. She testified that the plaintiff could only do light work; that he should be restricted to occasional lifting of 15-20 pounds; and that he should not do repetitive bending, stooping or twisting. Lenz further testified that the plaintiff had suffered a permanent impairment of 13 percent, based on loss of motion. Although no objection was made to this proof, we have previously held that physical therapists are limited in the range of their expertise and, therefore, restricted in the professional opinions that may be expressed. See Bolton v. CNA Ins., 821 S.W.2d 932 (Tenn.1991).

Dr. Norman Hankins, a vocational disability expert, testified the plaintiff suffered a vocational disability of 78 percent. Hankins obtained a vocational history, administered multiple tests, after which he used a computer program as an aid in assessing plaintiffs disability. The defendant objected to Hankins’ testimony, arguing that the expert could identify no experts or literature within his field of learning to support the computer methodology he used in arriving at his opinion. In addition, the defendant asserted Hankins could cite no authorities to support his equating foreclosure from the labor market access to vocational disability. The trial court denied the motion to exclude Hankins’ testimony.

Dr. Eric Engum, a clinical psychologist, testified that the plaintiff was a superb candidate for vocational rehabilitation; that he was intelligent; that he had transferable skills; that he could be retrained within six months to a year; and that as a result, he only had a 16 percent vocational disability. In addition, he disagreed with the methodology used by expert Hankins in assessing the plaintiff’s vocational disability.

With respect to future employment, the plaintiff expressed a willingness to undertake rehabilitation and further education. His previous employment was as a tractor-trailer driver for 20 years and, before that, he worked as a fork lift operator and as a material handler and inspector. Both vocational experts agreed that plaintiff should be referred for vocational rehabilitation services.

On the basis of the foregoing proof, the trial court found the plaintiff had “suffered a low-back injury and has been out of work for several months, and according to all authoritative sources is unable to return to his job as a truck driver.” The court found that the plaintiff had obtained his GED in the military but was not functioning at the high school grade level; that he had no real transferable skills, but he has “an average chance of rehabilitation and retraining,” and, at the present time, is limited to light or sedentary work. Based on these findings, the court found that the plaintiff had sustained a permanent partial disability of 65 percent to the body as a whole.

With respect to the lump sum award, the court found as follows:

The complainant is a steady family man with two sons, aged 15 and 13, who lives in a mobile home on which there is owed an indebtedness. He wants to construct a three-bedroom home on his land and the court finds that he is entitled based upon his special needs to obtain his award in a lump sum.

Our review, of findings of fact 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. § 50-6-225(e)(1983 & 1991); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn.1989).

The defendant first argues that the trial court erred in admitting the testimony of the vocational expert, Dr. Norman Han-kins. Specifically, the defendant argues that Dr. Hankins’ testimony should be excluded under Rules 703 1 of the Tennessee [557]*557Rules of Evidence, which provides that if the basis of opinion testimony by an expert is inadmissible facts or data, they must be of a type reasonably relied upon by experts in the particular field in forming opinions, and that the court shall disallow an opinion if the underlying facts or data indicate a lack of trustworthiness. The defendant argues that the data described by Dr. Han-kins in establishing a predicate to the vocational disability rating is not of a type reasonably relied upon by experts in the field of vocational assessment, nor is it trustworthy. The defendant complained of Hankins’ use of a labor market access computer program which assumed certain aptitudes of the plaintiff, which had not been tested. Finally, the defendant argues that if Hankins’ proof were excluded, the disability award should be reduced.

We have reviewed Hankins’ testimony in its entirety and agree that the trial court did not err in admitting the vocational expert’s testimony. We conclude, therefore, that the defendant’s argument has no merit.

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836 S.W.2d 554, 1992 Tenn. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-colonial-freight-systems-inc-tenn-1992.