### IN THE S UP REME COURT OF TENNESS EE

SP ECIAL WO RKERS’ COMP ENSA TION AP PEALS PAN EL

AT JAC KSON JA N U A RY 16, 200 4 S es sio n DAVID STUPP, ET AL 

### . v. PHI LLI PS AUTO BO DY, LLC AND FIRST AMERICAN I NSURANCE COMPANY, ET AL 

### . Direc t Appeal from the Chancer y Court for Shelby Cou nty No. CH-01-1774- 1 WalterL. Evan s, Chancellor

No. W2003-00825-SC- WCM- CV- M ailed Septem ber 2, 2004; F iled Novem ber 30, 2004

Th is w or ke rs ' c omp e ns a tio n a

pp e a l ha s b e e n re f

e r r e d to the Spe c ia l Wor

ke rs ' Compe ns a tio n A pp e a ls Panel of the S upreme Court in acc ordanc e with Tennessee Code Annotated Sec tion 50-6-225( e) ( 3) for he aring and reporting to the S upreme Court of findings of fa ct and c onclusions of law. The trial court de termined that the pla intiff sustained a 25% vocational impairment to the body as a w hole. T h e d e f e n d a n ta s s e r t s t h a t : 1 ) t h e p l a i n t i f f f a i l e d t o c arr y h i s b u r d e n o f p r o o f o f p e r m a n e n ti n

j u r y; 2 ) t h e tr i a l c o u r te r

r e d i n f i n d i n g p l a i n t i f

f h a d a n o p e r a t i v e d i s k

l e s i o n w h i c h n e c e s s i t a t e d s u r g e r y; 3) the tr ia l c ou rt

e rr e d inno t g ranti ng de fe nd a nt' s mo tio n f or a dd iti on a l f

a c ts or to am e ndjud g e me nt; and 4) the t rial court err ed in finding that Dr. Anthony Seg al' s char g es we re r easona ble and ne cessa

ry and in g ranting plaintiff' s motion for discretionary costs. Plaintiff asserts that the tria l court er red when it awarde d plaintiff a 25% disability impairment to the body

as a w hole, urg ing that the awa rd sh ou ld h a ve be e n h ig he r. We a g re e wi th the po sit ion of the plaint if

f, a nd fo r the re a so ns se t f orth below, we modify

the judg ment of the trial c ourt t o aw ard a forty -five pe rce nt (45%) voc ational disabilityto the body

as a w hole.
Tenn. Cod e Ann. § 50-6-225(e ) (1999) Appeal as of Right; Judgme nt of th e Chancer y Court Aff irm ed as Modif

ied
J A M ES F. B UT L ER , S P
. J ., delivere d the opinion of the Court, in which J ANI CE M. H OL DER , J ., and J A M ES L. W EA T H ERFORD , S R
. J ., joined.
Ric hard W . V aug hn , Jr. , M ila n T e nn e sse e , f or the app e lla nts , Ph ill ips Au to B od y , L L C a ndF ir st A m e r i c a n In s u r a n c e C o m p a n y. David G. Mills, Cordova, Tenne ssee, f or the a ppellee, D avid Stupp.-2- M EM OR AN DU M OP IN ION
Plaintiff w as, at time of trial, 38 y ear s old, ma rried with f

our childre n, and attende d school t o t h e 1 1 t h g r a d e
. P l a i n t i f f w a s e m p l o ye d a s a n a u t o b o d y f r a m e t e c h n i c i a n a t P h i l l i p s A u t o B o d y, LL C. The company was owned by Mary and L ou Phill ips who also worke d there

. Plaintiff's duties consisted of ve hicle body and fra me work. At the time of his injury he was working in the shop on a pickup truc k. Plaintiff alleg es that on Jul y 10, 2001, Plaintiff and a c o-worke r, Scott Tay lor, wer e lifting the hood off of

a pickup truc k when Plaintiff sustained a n injury to his neck. He notified L ou P h i l l i p s i m m e d i a t e l y. P l a i n t i f f w o rk e d t h e r e m a i n d e r

o f t h e d a y o n l i g h td u t y.
Th e ne xt day Pla int if

f stil l had pa in andwe nt t o B apti st M ino r M e dic a l a ndthe n to Ca mpb e ll Clini c. He was see n by

Dr. Doug las Linville at the Campbell Clini c wh o s ent him to phy sical thera py and pre scribed me dication. He returne d to work the ne x t day . On J uly 17th, 2001, Plainti ff went to phy sical thera

py and re turned to work. Adiscussion ensued betwe en Plaintiff and Ma ry Phill ips because she thought he had been g one longe r than she expected, and Plaintiff w as terminate d t h a td a y. Plaintiff continued hi s p h y s ic al t h era py afte r termination and w as re fer red to Dr . Ashley

Park, a lso a t th e Ca mpb e ll Cl ini c . D r. Park or de re d an MRI a nd inj e c te d Plai nti ff wi th two ste ro id b loc ks

. He wa s th e n r e fe rr e d to Dr . Joh n B ro ph y a ndult imate ly re tr ie ve d h is m e dic a l r e c or ds fr om C a mpb e ll Clini c. His medical rec ords contained a comment about a previous lawsuit and that the Plaintiff had been vide otaped " popping w heelies" on a four -whe eler

. Dr. B rophy

revie wed the MRI

and found c ervic al spondy losis, worse on t he left at C 5-6 and C6-7, without definite evidenc e of ne rve r oot or spinal cord compression. W anting to rule out nerve ro ot c omp re ssi on , h e or de re d a my e log ram/CT sc a n a ndla te r o rd ereda bil a te ra l up pe r e xtre mit y EM G/ne rv e c on du c tio n s tud y . A ft e r r e vie wi ng the se stu die s, a c c or din g to P la int if f, Dr . B ro ph y

tol d him that he didno t hu rt him se lf a t wo rk , that the re wa s no thi ng wr on g wi th him , a nd that he sh ou ld g o back to wor

k immediately . Plaintiff therea fter soug ht the service s of Dr. A nthony Seg al, a neurosur g eon and provided hi m with his MRI for review. Dr. Seg al ultimately perf ormed surg ery on the Plaintiff. After

his recove ry

period, he went bac k to work for the same company which wa s un de r ne w o wn e rs hip . A t tria l, P la int if f w a s d oin g the sa me wo rk that he wa s d oin g prior

to h is i n j u rywi t h t h e e x ce p t i o n o f t h e h ea v y l i ft i n g. Medical Evidence Dr. John Brophy

initially saw the Plaintiff on March 11, 2002. H e re viewed the Plaintiff’s MRI and opined that Plaintiff had cer vical spondy losis, worse on the left at C-5-6 and C-6-7, without definite e vidence of nerve root or spinal cord compression. Ba sed on Plaintiff’s severity of pain, Dr

. Br ophy order ed a c ervic al my elog ram/CT scan to r ule out nerve root compre ssion. His plan was that i f t h e m y e l o g r a md e m o n s tr a t e d e v i d e n c e o f n e r v e r o o t c o m p r e s s i o n , t h e y w o u l d d i s c u s s s u r g e r y
. If-3-

not, they would discuss Plaintiff’s return to wor k. Dr. B rophy

rea soned that the only

rea son to do surg ery would be to remove pressure from the ne rve. Since there are many cause s of pain in the nec k and arm other than pressure on a nerve, he wanted to verify the ner ve pre ssure. He opined that the my elog ram is the “g old standard” to determine ne rve r oot pressure

. The my elog ram/CT scan w as perf ormed a nd there wa s s t i l l n o definite e vidence of a he rniated disk or ne rve r oot compression. Be cause of Plain t i ff ’s continued complaints of bilater al upper extremitypain, Dr. B rophy re co m m en d ed an E M G/ n er v e c o n d u ct i o n s t u d y
. T h i s s t u d y wa s wi t h i n n o rm al l i m i t s
. Al t h o u gh Plaintiff stil l describe d pain bilatera lly , Dr. B rophy , based on evidenc e he ha d befor e him, clea red Plaintiff to return to work w it h o u t restric tions on April 16, 2002, with a permane nt partial impairment rating of zero. Dr. Br ophy stated that g ener ally if there is a signif icant disk herniation, it is obvi ous, but at other times the finding s are less obvious, and Plaintiff was in that categ ory . On the subject of justification for surg ery , Dr. B rophy stated:
Dr. B rophy ’s deposition, pag es 12-13: QU EST I ON : Ok a y . G oin g ba c k to the Ma rc h 1 5 vis it, wo uld y ou ha ve –b a se d o nly

th
on t h e revie w of the MRI , would y ou have r ecommende d surg ery without the my elog ram CAT scan?
ANSWER: No. QUESTI ON: And why

not, Doctor?
AN SWER: B e c aus e his prima ry sympt oms a ndc lin ic a l e xami natio n at th a t ti me did n o t fit the abnorma lities on the MRI , and ...ther e wa s not definitive evide nce of

nerve root compre ssion, whic h is the primary issue that I

am oper ating on. QUESTI ON: And y ou came to the same c onclusion after revie wing the my elog ram and CAT sca n that y ou order ed?
AN SWER: Ye s.
Dr. B rophy ’s deposition, pag es 20-21: QUESTI ON: Okay . And one thing that Dr. Seg al pointed out is whe n he pre sented

himself to Dr. S eg al, by then hi s arm pain was almost ex clusively left arm pa in, which from Dr . Seg al’s p oint of view I would think was very consistent with having an MR I that showed a bulging disc on the le ft ?
AN SWER: Pot e nti a lly , y e s.-4-

QUESTI ON: Potentially . So without having— Dr . Seg al didn’t have the CAT

scans a nd the my elog rams that y ou had, and f rom his point of view he had an MRI

that s h o we d left arm–or left disc-- a disc on the le ft side and then left arm pain that was c onsistent, so he went ahe ad and didsu rg e ry . Wa s th a t—b a se d o n th a t, that se e me d li ke a re a so na ble t h i n g t o d o , w o u l d n ’ tyo u s a y?
ANSWER: Ag ain, i t depends on the presentation, exact description of the pain,

what d i d the exam show. Potentiallyit could have f it. And, of course , the re al bar ometer to a nswer that q u es tion is how did he do post-op. QUESTI ON: And if he did we ll - - very well post op, that would be indicative that there was s o m e impinge ment on that nerve running down his left ar m ?
ANSWER: Yes.
Dr. B rophy ’s deposition, pag e 26: QUESTI ON: Well, is the best evidenc e that he ha d co m p ression on the nerve the

fac t that after

the surg ery

is over and a fusion is done he is not having arm pa in any more?
AN SWER: Ye s.
Dr

. B r o p h y p r e v io u s ly r a te d th e Pl a in ti f f a t 0 % p e r man e n t p ar ti a l imp a irme n t w ith no restric tions. However , he did state that ha d he done a one leve l anteri o r ce rv i ca l diskectomy and fu sio n o n th e Pla int if

f, his ratin g wo uldha ve be e n 1 0% ba se d o n th e AM A G uid e s. Pla in ti f f r e trie v e d h is me d ic a l r e c o r d s f r o m D r
. B r o p h y , in c lu d in g th e M RI a nd my elogra m/CT scan and soug ht a sec ond opinion from Dr. Anthony Seg al, a ne urosurg eon. Dr

. Se g a l sa w the Pla int if

f i nit ia lly on Ap ri l 18 , 20 02

. He re vie we d the MRI , b ut P la int if f p ur po se ly did not provide Dr. Seg al with the my elog ram/CT scan or any of Dr. B rophy ’s re cords. Dr . Seg al noted that the MRI

showed two disk le sions, one very small be tween the C-6 and C-7 which he f elt was insignificant, and one betwee n C-5 and C-6 with some bony spur and with some c ompression of the c o r d a n d th e n e r v e o n th e le f t s id e
. H e c o n ti n u e d c o n s e r v a ti v e tr e a tm e n t o f th e Pl a in ti f f and su g g e ste d Pl a int if

f t ry to r e turn to wo rk . Pl a int if f re turne d to wo rk

fo r a bo ut thr e e da y s, bu t ha d to stop because of pa in. I n May 2002, Plaintiff returne d to Dr. Seg al with left arm and left shoulder blade a nd s h o u l d er p ai n . Dr. Seg al sug g ested surg ery on one leve l betwee n C-5 and C-6 and a fusion. The surg ery

was pe rformed on May

31, 2002. During surgery , Dr. Seg al noted that the Pla int if f’ s p os te ri or

lon g itu din a l lig a me nt app e are d to ha ve be e n str e tc he d fo r at le a st s ix mon ths ,-5-

wh ic h in dic a te d to him

that Plaint if

f h a d a lon g -s ta nd ing dis k p ro ble m. H e state d this c on dit ionwi ll not show up on an MRI , a CT sca n, a my elog ram or E MG.
After surg ery , the Plaintiff did well. After a re covery

period, Plaintiff re turned to work. D r. Se g a l op ine d th e Pla in ti ff’s a c c ide nt at w or k c a us e d th e he rn ia te d d isk that he sa w andrate d h is anatomica l impairment at 25% to the whole body in acc ordanc e with the AMA Guides. He stated that prior to his testimony he had not seen the my elog ram, the post my elog ram CT sca n, or the EMG/ nerve conduction st udy

. He stated that had he seen them, and they wer e normal, it was possible he wo uldha ve tho ug ht l on g e r andha rd e r and ma y no t ha ve do ne the su rg e ry . B ut g ive n th e re su lts , it wo rk e d o ut b e tte r f

or the Pla int if

f, a c c or din g to D r. Se g a l.
Stand ard of Review Appellate r eview is de novo upon the re cord of the trial court, acc ompanied by a pre sumption of the c orre ctness of the finding s of fa cts, unless the pre ponderance of the evidenc e is otherwise

. Tenn. Code. Ann. § 50-6-225( e) ( 2) (Su p p . 2 0 0 2 ). The re vi ew i n g court is re quired to conduc t an ind e pe nd e nt e xami natio n o f the re c or d to det e rm ine wh e re the pr e po nd e ranc e of the e vid e nc e lie s. W i n g er t v. Gov ernme nt of Sumner County, 908 S.W .2d 921, 922 ( Tenn. 1995)

. T h e s ta ndard g ov e rn ing app e llate re vie w o f f ind ing s o f f

a c t by a tr ia l c ou rt

re qu ir es the Spe c ia l Wor ke rs ' Compensation Panel to examine in depth a trial court' s fac tual finding s and conc lusions. GAF Bldg. Materials v. Ge orge, 47 S.W .3d 430, 432 ( Tenn. 2001) . T he tr ia l cour t's fi nd ing s w ith re sp e c t to cre dibilit y

and we ight of

the evidenc e may

g ener ally be inferre d from the manner in which the court resolves c onflicts in the testimonyand dec ides the ca se. Tobitt v. Bridgestone/Firestone, In c. , 59 S.W .3d 57, 61 ( Tenn. 2001) . Where the tria l court has seen and hea rd witnesses, e specia lly

wher e the issues of cr edibilityand weight of oral testim ony are involved, considera ble def ere nce must be acc orded the trial court' s fac tual finding s. Humphreyv. Dav id W itherspoon, Inc., 734 S.W

. 2d 315 (T en n . 1 9 8 7 ). The e x tent of an injured worke r' s vocational disability is a question of fa ct. Seals v. England/Corsai r Upholstery Mfg. Co., 984 S.W .2d 912, 915 ( Tenn. 1999)

. As to the first t hree issues raised by the Defenda nt, the C ourt fee ls that they are interre lated and we will deal with them as such.
1. Whe th e rth e P lai nt iff faile d t o c ar r y hi s bur de n of proof in est ab lis hing th at he suf fered a perm anent injury on Ju ly 10, 2001, and that he had an oper ative disk lesion w hich necessitat ed surgery.
I n order to be elig ible for worke rs compensation be nefits, an employ ee must suff er “an injury bya c c id e n t ar is in g o u t o f a n d in th e c o u r s e o f e mp lo y me n t w h ic h c a u s e s e ith e r d is ablement or death.” T

en n . C o de A n n . § 5 0 -6 -1 0 2 (12 ). The phra se “a rising out of

” re fer s to causation. The causation requireme nt is satisfied if the i njury has a rational, causal conne ction to the work. Ree ser v. Y ellow Freight Systems, Inc ., 938 S.W .2d 690,692 ( Tenn. 1997)

. Although c ausation ca nnot be based upon me rely

speculative or conject u ra l proof, a bsolute certainty

is not required. A ny rea sonable doubt in this reg ard is to be c o n s t ru ed i n fa v or of the e mploy ee. We ha ve thus-6-

c on sis te ntl y

he ld that a n a wa

rdma y pr op e rl y be ba se d u po n me dic a l te sti mon y to the e ff e c t th a t a g iven incident “could be” the cause of the e mploy ee’ s injury , when ther e is also lay testimonyfrom which it rea sonably

may be infe rre d that the incident wa s in fact the c ause of the injury

. Id

. I t is well settled in this state t hat a plaintiff i n a workers' compensation case has the burde n of proving every

element of

this case by

a pre ponderance of

the evidenc e. El mo re v . Tr av e le rs I ns
. Co ., 824 S.W

.2d 541, 543 ( Tenn. 1992) . Medica l cau s at i o n an d perma nency of an injury

must be established in most case s by expert medical testimony

. See, e .g. , Thomas v. Ae tna Lif e & Cas. Co., 812 S.W .2d 278, 283 ( Tenn. 1991)

. Wit h these principles in mind, we re view the r ecor d to determine wh e the r the e vid e nc e pr e po nd e rate s a g a ins t th e fi nd ing s o f the tr ia l c ou rt

. Pla int if f t e sti fi e d th a t he inj ur e d h ims e lf on July 10 , 200 1, wh ile he a nda c o- wo rk e r, Sc ott T a yl o r , w e r e l i f

t i n g a h o o d o f f a p i c k

- u p tru c k w h e n b o t h w e r e e m p l o ye d w i t h P h i l l i p s A u t o B o d y, LL C. Thi s i n ci d en t was c onfirmed by Scott Tay lor in his testim ony and the e mploy ee’ s acc ident rep o rt o n J u l y 11, 2001. The Plaintiff immediately notified one of the owner s of the shop, L ou Phill ips. He wa s put on light duty for the ba lance of th e wo rk d ay
. P l aint iff soug ht medical treatment the next day for which the employ er paid. The trial judg e made a finding of fa ct that the Plaintiff sustained an injury to his neck and arms while on the pr emises of his employ er, w hile lifting the hood of a

pick-up truc k.
P l ai n t iff initially

saw Dr . L inville whose rec ords indicate symptoms of radiculapathy consistent with nerve root compre ssion betwee n C5-6 on the rig ht side. Dr. Ashley Park’s re cords indicate he felt Plaintiff may have suf fer ed a c ervic al disk injury . Dr. Park or dere d the MRI which indicated a

centr al disk protrusion at C 5 and a posterior disk protrusion at C 6. Dr. Park’ s medical rec ords contain a note t hat i nformation from the claims adjuster states that Plainti ff wa s videotaped “popping whee lies” on a four wheeler with a child on the back and that the a djuster was c oncerned that si nc e he ha d a lr e a dy

g ott e n a se ttl e me nt f

or his lumba

r sp ine ($ 80 ,0 00 .0 0) he is he a de d the sa me way with his neck.
After being treated by

Drs. Linville and Park, Plaintiff was r efe rre d to Dr

. Br ophy , a neurosur g eon. Dr . Br ophy , afte r extensiv e t es t i n g , opined that the Plaintiff’s injury was not pe rm a ne nt, a ndre le a se d h im t o g o b a c k to wo rk wi th a zer o impa ir me nt r a tin g
. He ba se d th is opinion primarily

on his belief that ther e wa s no definite evide nce of cord or nerve root compre ssion which would justify

doing sur g ery
. Whil e Dr. Br ophy stated hi s opinion that the m y elog ram wa s the “g old standard” to determine nerve root pressure , he did state also that the real ba rometer to answer that question is how the patient did afte r the ope ration.
Dr . Se g a l initi a lly sa w Pla int if f on A pril 1 8, 20 02 , a ndre vie we d th e me dic a l r e c or ds of Dr s. L inville a nd Park at the Campbell Clini c. He a lso reviewe d the Plaintiff’s MRI , but did not have the my elog ram/CT scan or

EMG per formed w hile Plaint i ff was unde r Dr. B rophy ’s ca re. D r. Seg al diag nosed a C5-6 disk lesion and after conservative treatment failed to provide relief to the Plaintiff, Dr. Seg al per formed an anterior cervical diskectomy and fusion of C5 and C6. During surg ery , Dr. Seg al discover ed a “ floppy ” lig ament that had be en stretc hed by the disk. This indicates the ligament-7-

had been s tretche d for at least si x months. I n his opinion this was further verification of his initial dia g no sis of

a dis k le sio n. Af

te r a re c ov ery perio d, Pla int if f’ s p a in w a s g on e a ndhe re turne d to work. Dr. Seg al opined that Plaintiff had suff ere d a twenty -five pe rce nt (25%) impairme nt to the wh ole bo dy

ba se d o n th e AM A G uid e s. Dr . Se g al expla ine d th a t so me tim e s a dis k h e rn ia tio n is dramatic and obvious and that the surg eon can clea rly see the pressure has bee n remove d from the n er v e a n d t h ath ad t o h av e b ee n t h e s o u rc e o f t h e p ro b l em
. T h er e a re o t h ert i m es wh en t h e f i n d i n gs ar e l e s s i m p r e s s i v e a n d l e s s o b v i o u s , a n d P l a i n t i f f f e l l i n t o t h i s l a t e r

c a t e g o r y.
Dr. B rophy

and Dr . Seg al disag ree d conce rning the sig nificanc e of the Pl ai n t i ff ’s “floppy liga ment.” Dr . Br ophy

said that the pre sence of a f lop p y l i gam en t h ad no signific ance as to a he rn ia tio n. Dr . Seg a l sta te d tha t it ind ic a te d a disk that ha d b e e n h e rn ia te d f or a t le a st s ix mon ths

. They also disag ree d conce rning the importance of the my elog ram/CT scan and EMG in diag nosing the disk lesion. Dr. B rophy said the my elog ram was the “ g old standard.” Dr. Seg al said it is not the my elog ram whic h is most s pecif ic, but the C AT scan afte r t he my elog ram. The CT scan after the dy e has been put in plac e is slightly more a ccur ate than theMRI , but only about one ( 1) or two ( 2) pe rc e nt d if

fe re nc e , p art ic ula

rl y in s ome bo dy y ou ng lik e the Pla int if f. Dr

. Se g a l did no t th ink

the po st my elog ram CT has much to of fer , nor did he think that the EMG nerve conduction study would show that much in the ca se of a surg ical disk.
Whe n f a c e d, a s inthe c a se be fo re us , w ith c on fl ic tin g me dic a l te sti mon y on the se iss ue s, " it is within t he discre tion of the trial judg e to conc lu d e t h at t h e opini on of ce rtain experts should be accep ted ov er t hatof o th er ex pert s an d t hat it con tai ns th e mo re pr ob abl e ex pl anat io n. " Hinson v. W al-Mart Stores, Inc. , 6 5 4 S

. W

. 2 d 6 7 5 , 6 7 6 -7 7 (T en n
. 1 9 8 3 ) ( ci t i n g Combustion Engineering, Inc. v. Kenne dy , 562 S.W .2d 202 (Tenn. 1978) ). It should be note d t h at t h e ru l e set out in Hinson rema ins valid even thoug h Hinson was de cided unde r the " materia l evidence " sta ndard of revie w.
I n light of the fore g oing e vidence , we a re pe rsuade d that there is ample evidenc e in the re cord to support the trial court' s finding that the Plaintiff car ried his burde n of proof

in establishing that he suffe red a perma nent injury on J uly 10, 2001, and that he had an operative disk les i o n whi ch nece ssitated surg ery . We theref ore a ffirm the tria l court' s findings in this reg ard.
2
. W he t he rt he t r ia l c o ur t e r r e d i n a wa r di ng un pa id m e di c a l e x pe ns e s t o P la in t if f because P laintif

f f ailed to requ es t a uthorization of the De fend ant for the tre atm ent by Dr. Se ga l.
Te nn e sse e Cod e An no ta te d Se c tio n 5 0-6 -20 4 (a )( 4) (A ) p ro vid e s th a t th e e mpl oy e r s ha ll fu rn ishsu c h me dic a l c are a s is re a so na bly re qu ir e d f

or a c omp e ns able inj ury

a ndthat: (4) The injured employ ee shall acc ept the medica l benef its afforde d here under; provide d that the employ er sha ll designate a g roup of thre e (3) or more reputa

ble phy sicians or surg eons not associated tog ether-8- in prac tice, if a vai lable in that community , from which the injured employ ee shall have the privileg e of selecting the oper ating surg eon or attending phy sician.
After b ei n g sent to Dr. B rophy , and not re ceiving any relief , Plaintiff desired a

second op ini on . H e inf

orme d D r. B ro ph y

of thi s re qu e st, a ndDr . B ro ph y pr ov ide d Pl a int if

f w ith his te st re su lts . Pl a int if

f w a s r e fe rr e d to Dr . Se g a l by his re g ula r p hy sic ia n f

or oth e r u nr e la te d c omp la int s. Since these complaints had resolved themselves befor e his appointment, Pl aintiff dec ided to use the app oin tme nt t o d isc us s h is w or k in jury . O n h is f

ir st v isi t, h e pr ov ide d D r. Se g a l w it h the Au g us t 2001 MRI

and the r ecor ds of Dr. Linville and Dr. Park. H e int en t i o n al l y wi thheld the my elog ram/C T scan and EMG studies g iven to him by Dr. B rophy . Plaintiff did not seek auth oriza tio n f

ro m D e fe nd a nt f

or the tr e a tme nt r e nd e re d to him by Dr . Se g a l.
Plaintiff indicated that he w ithheld all refe renc es to Dr. Br ophy beca use he did not trust Dr. Br ophy . When he initiallysaw Dr. Br ophy he was informed that his c ase worke r had a lrea dy been there talking to Dr . Br ophy for about a half

an hour. This wa s appar ently the same c ase w orker

who had informe d the Plaintiff’s pre vious doctor that Plaintiff had bee n “popping wh ee lies on a four

whee ler.” This information later at trial was proven to be fa lse. Plaintiff felt that Dr. B rophy was short with him and seemed to ha ve an " attitude" w ith him.
P l ai n t i ff had experience d difficulties with the De fendant’s insurance car rier and the De fe nd a nt. De fe nd a nt ha d termin a te d Plai nti ff sh ortly a ft e r the inj ury . Pl a int if

f’ s c la im f or wo rk e rs ' c omp e ns a tio n b e ne fi ts w a s d e nie d. Pla int if f h a d to fi le su it t o o btain h is t e mpo ra ry be ne fi ts. Def endant had a private investig ator videota ping the Plaintiff but who was also videotaping Plaintiff’s brother by

mistake. I t was P laintiff' s brother who was videota ped riding the four- whee ler.
Fr om a re view of a ll the medical and lay testimony , the Panel is persua ded that if Plaintiff had take n Dr. B ro p hy ’s advice and not had surg ery , he may have not be en able to return to wor k. By seeking a sec ond opinion and ultimately having surg ery , Plaintiff w as at trial time ba ck at work a nddo ing we ll.
Th e tr ia l c ou rt ha s auth ority to or de r that the e mpl oy e r pay fo r un a uth orize d me dic a l c are if the employ ee fa i l s t o consult the employ er be fore hand whe n the circ umstances wa rra nt such an Orde r. The Court ha s stated the following proposition:

Whether an e mploy ee is justified in seeking additional medical service s to be paid for

by the em p l o y er, without consulti ng the employ er, de pends on the ci rcumstanc es of e ach c ase. Bazner v. American States I

ns. Co., 82 0 S. W.2 d 7 42 , 7 46 (T e nn .1 99 1) ; se e als o Dorris v. INA Ins. Co., 764 S.W .2d 538, 540-41 (Te nn. 1989).
The trial c ourt found that Dr . Seg al’s surg ery and re lated ex p en s es we re all paid for by Te nn Care , Pl a int if

f’ s h e a lthins ur a nc e c arrie r. Sin c e the tr ia l cou rt or de re d D e fe nd a nt t o r e imb ur se-9-

TennCar e for its c ost of the surg ery by Dr. Seg al, the trial court evidently believed that the pr oof su pp orte d s uc h p a y me nts . T he tr ia l c ou rt ' s f ind ing s o n th is i ssu e are a s f oll ow s: The tre atment re ndere d to the Plaintiff by Dr. Anthony

Seg al and the e xpe ns e s in c ur

re d f ro m D r. S egal, Sa int

Franc is H os pit a l, anda ll other provide rs in relation to the surge ry wer e re asonable and n e c e s s ar y a s a

r e s u l to f s a i d i n j u r y. TennCar e must be rei m b u rsed by the Def endant, F irst American I ns ur a nc e Compa ny , for a ny a nd a ll med ic a l e xpe ns e s p a id o n b e ha lf of the Pla int if

f, Da vidStu pp , to Dr . Ant ho ny De g a l, S a int

F ranc is H o s p i t a l , a n d a l l o t h e r

p r o v i d e r s i n r e l a t i o n t o t h e s u r g e r y. The trial court hear d the testimony of Plaintiff, viewed the vide otapes of the defe ndant and his brother, a nd appar ently cre dited the P laintiff' s testimonythat he had r eason to distrust Dr. B rophy un de r the tot a lit y

of the c ir c ums ta nc e s.
Fr om our ana ly sis of t he record, we cannot find that the evidenc e pre ponderates ag ainst the trial court' s determination that the e x penses r elated to Dr. S ega l ' s surg ery wer e re asonable and nece ssary as a result of the injury . Acc ording ly , we a ffirm the tria l court’s ruling that the expenses f o r D r
. S e g a l ’ s s u r g e r y w e r e r e a s o n ab l e a n d n e c e s s ar y. 3. W he t he rt he e v id e nc e pr e po nd e r a t e s a g a in s t t he t r ia l c o ur t ’ s fi nd in g t ha t P la in t if f ret ains a tw enty-five perc ent (25%) disab ility impairm ent to t he body as a wh ole.
The e x tent of vocational disabilityis a question of fa ct to be dete rmined fr om all of the e v i d e n c e , i n c l u d i n g l a y a n d e x p e r tt e s t i m o n y. W orthington v. Modine Mfg. Co. , 798 S.W .2d 232, 234 ( Tenn

. 1 9 9 0) . I n making determinations of vocational disability , the court shall consider a ll pertinent fac tors, including lay

and ex pert testim ony , employ ee' s ag e, education, s kills and training, loca l job opportunities, and capa city to w ork at types of employ ment available in c laiman t 's d i sabled condition. Tenn. Code Ann. § 50-6-241 ( a) ( 1) ; Roberson v . Loretto Cas ket Co., 722 S.W .2d 380, 384 (T en n . 1 9 8 6 ).
I n this case , the medica l proof provide d the following anatomica l impairment rating s to the body as a w hole: 1) Dr. Seg al assig ned a twe nty -five pe rce nt (25%) impairme nt r ating ; 2) Dr. B rophy a ssi g ne d a

z ero perc ent ( 0% ) i mpair me nt r a tin g , b ut a lso sa id that if he ha d p e rf

orme d th e sa me surg ery that Dr. Seg al had perf

ormed on Plaintiff, his rating would have be en ten pe rce nt (10%). D r. Seg al stated that a ccor ding to the A MA Guides, Plaintiff must be rate d under the DRE method. He stated this is the first injury at one level, and for fusion, which g ives him loss o f m o t i o n s egment integ rity , he g ets a perma nent partial impairment rating of twenty -five pe rce nt (25%) to the body as a wh ole . D r. B ro ph y a c kn ow le dg e d the e xamp le in the Gu ide s re fe rr e d to by Dr

. Se g a l that r a te s a patient who had a fusion and did w ell at twenty -five perc ent (25%)

. Howeve r, he opined t h at t he AM A G uid e s c on tra dic t th e mse lve s a s to the ratin g s g ive n f or su rg e ry of thi s n a tur e a ndthat hi s-10-

standard r ating for a surg ery such as the P laintiff’s was ten percent (10% ). Dr. B rophy stated that he used the rang e of motion method which is appropriate in a two-leve l surg ery . Under this rating method, the ra ng e of motion must be actua lly tested. Dr. B rop h y d i d not actually test Plainti ff’ s rang e of motion beca

use he never saw P laintiff after his surg ery
. Dr. Brophy rate d Plaintiff with an eig ht perc ent (8%) impairment for the surg ery and an a ddi t i o n al two perc ent (2%) for a rang e of motion which he desc ribed a s “g ener ous.”
Th e tr ia l c ou rt

ma de a fi nd ing that th e re wa s n oth ing in the re c or d to ind ic a te to a re a so na ble deg ree of medica l certainty whether Dr. B rophy ’s two per cent ( 2%) r ating for a loss of rang e of motion is indeed “ g ener ous,” equitable , or overly conser vative. Plaintiff testified, and the trial court fo un d, that th e Pla int if

f d e mon str a te d s ome los s o f r a ng e of mot ion in be nd ing his ne c k f or wa rd s, extending his nec k backw ards, a nd tilti ng his head fr om side to side. The c ourt furthe r found that Plaintiff was unable to lift the heavycar parts that he lifte d prior to his injury . Scott Tay lor, Plaintiff’s co-w orker

at the t i m e o f h i s i n

jury and at the time that he returne d to work for his new employ er, te stified that prior to the Plaintiff’s injury , Plaintiff did heavy work, but that af

t er the injury he did not see Plaintiff do a n yheavy work. Plaintiff testified that be ing a fra me technic ian can be a hea vy lifting job, r equiring the lifting of doors, tailgates, beds on trucks, hoods and anything he a vy on a c ar that c ome s o ff . Pl a int if f t e sti fi e d th a t he op e rates tw o fram e mac hin e s n ow in h is c ur re nt j ob , b ut h a s h e lpe rs that g o f ro m on e ma c hin e to the oth e r t o d o th e thi ng s that he is no t a ble to d o
. Plaintiff testified that he no long er doe s any heavy lifting for

his new employ er. H e stated that he g ets help from co-w orker s to do heavy lifting re quired in his work. Plaintiff stated that if he lost his current job as a

“fr ame man,” he would have to f ind some one who would employ him under the same c ircumstance s, and that he had never seen a job like that. Plaintiff’s work hist ory is one of manua l labor involving he avy l i ft ing. Plaintiff wa s 38 y ear s old at the time of trial and w as educated to the eleve nth gr ade. Plaintiff wa s terminated by his employ er shortly

afte r the injury occur red and did not return to work w ith his pre-injury employ er.
I t is well settled that a claimant’s anatomica l disability rating is but one fac tor in considering t h e ex t ent of voc ational disability

. Roark v. Liberty M utual Ins. Co., 793 S.W

.2d 932, 934

. Plaintiff's ow n assessment of his phy sical condition is competent testimony and cannot be disreg arde d. To m S ti ll

Tr a n s fe r Co

. v . W ay, 4 82 S.W

.2 d 7 75,7 77

( Te nn . 1 97

2) ; W alke r v . Satu rn Corp., 986 S.W

.2d 204, 208 ( Tenn. 1998)

. Her e the Plaintiff is 38 y ear s old, has an ele venth g rade education and a job history of manua l labor a s an autobody

fra me technic ian. While Pl aintiff has r eturne d to work, he is now una ble to lift the he a vy c ar p art s th a t he lif

te d prior to h is i nju ry . H e c ur

re ntl y ha s h e lpe rs to d o th e thi ng s h e is no t a ble to do

. He no lon g e r do e s a ny he a vy lif tin g fo r h is n e w e mpl oy e r. Pla int if f t e sti fi e d th a t if he los t hi s jo b a s a

" fr a me ma n" he wo uldha ve to f inda no the r e mpl oy e r w ho wo ulde mpl oy him under the se same c ircumstance s. Plainti ff testified that he does not know of a job like that.
An examination of these fa ctors pre ponderates in favor of an inc rea se in th e trial court’s assessment of vocational disability and in f avor of a f

inding of forty -five pe rce nt (45%) pe rmane nt partial disability

to the whole body

.-11- CO NC LU SION
We hold that the evidence preponder ates ag ainst the t rial court’s assessment of a twenty -five perc ent (25%) vocational disability rating to the Plaintiff’s body as a w hole. After consider ation of all the appropriate factors, we m odify the judg ement of the trial court a nd awa rd a f orty -five pe rce nt (4 5% ) v oc a tio na l di sa

bil ity to the bo dy a s a who le

. As mod if ie d, the jud g me nt is a ff

ir me d. Cos ts are assessed to the Appellants, Phill ips A utobody , LL C and First Americ an Insuranc e Company , for w h i c h e x e c u t i o n m a y i s s u e i f n e c e s s ar y.

____________________________________

J AMES F. B UTLER, SP ECI AL J UDGE-12- 

### IN THE S UP REME COURT OF TENNESS EE

AT JAC KSON
DA VID STU PP , e t al, v. PH ILLIPS AU TO BOD Y, LLC & F IRST

A M ER IC A N IN SU R A N C E C OM P A N Y , e t al

No. W2003-00825-SC- WCM- CV - F iled Novem ber 30, 2004

OR DE R

This case is befor e the Court upon motion for review pursuant to Tenn. Code Ann. § 5 0- 6- 22 5( e )( 5) (B ), the e nti re re c or d, inc lud ing the or de r o f r e fer ra l to the Spe c ia l Wor

ke rs ' Compensation Appeals Pane l, and the Panel' s Memorandum Opinion setti ng forth its findings of fac t and conc lusions of law, which a re inc orporated her ein by ref ere nce; Whereupon, it appe ars to the Court that the motion for revie w is not well-take n and should be denied and

I t is, therefor e, o rd er ed that the Panel' s findings of fac t and conc lusions of law are adopted a nd aff

irmed, and the decision of the Pane l is made the judg ment of the Court. Cos ts o n a

pp e al are tax e d to the Ap pe lla nts , Ph ill ips Au to B od y , L L C, andF ir st A m e r i c a n In s u r a n c e C o m p a n y.

I T I S SO ORDERED this 30 day of Nove mber, 2004. th

PER C URI AM

Ho l d er , J

. - n o tp ar t i ci p at i n g.