IN THE SUPREME COURT OF TENNESSEE

SPECIAL WORKERS’ COMPENSATION APPEALS PANEL

AT JACKSON

JANUARY 16, 2004 Session

DAVID STUPP, ET AL. v. PHILLIPS AUTO BODY, LLC AND 

FIRST AMERICAN INSURANCE COMPANY, ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. CH-01-1774-1 Walter L. Evans, Chancellor

No. W2003-00825-SC-WCM-CV- Mailed September 2, 2004; Filed November 30, 2004

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals

Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3)

for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial

court determined that the plaintiff sustained a 25% vocational impairment to the body as a whole.

The defendant asserts that: 1) the plaintiff failed to carry his burden of proof of permanent injury;

2) the trial court erred in finding plaintiff had an operative disk lesion which necessitated surgery;

3) the trial court erred in not granting defendant's motion for additional facts or to amend judgement;

and 4) the trial court erred in finding that Dr. Anthony Segal's charges were reasonable and necessary

and in granting plaintiff's motion for discretionary costs. Plaintiff asserts that the trial court erred

when it awarded plaintiff a 25% disability impairment to the body as a whole, urging that the award

should have been higher. We agree with the position of the plaintiff, and for the reasons set forth

below, we modify the judgment of the trial court to award a forty-five percent (45%) vocational

disability to the body as a whole. 

Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; 

Judgment of the Chancery Court Affirmed as Modified

JAMES F. BUTLER, SP. J., delivered the opinion of the Court, in which JANICE M. HOLDER, J., and

JAMES L. WEATHERFORD, SR. J., joined.

Richard W. Vaughn, Jr., Milan Tennessee, for the appellants, Phillips Auto Body, LLC and First

American Insurance Company.

David G. Mills, Cordova, Tennessee, for the appellee, David Stupp.
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MEMORANDUM OPINION

Plaintiff was, at time of trial, 38 years old, married with four children, and attended school

to the 11th grade. Plaintiff was employed as an auto body frame technician at Phillips Auto Body,

LLC. The company was owned by Mary and Lou Phillips who also worked there. Plaintiff's duties

consisted of vehicle body and frame work. At the time of his injury he was working in the shop on

a pickup truck.

Plaintiff alleges that on July 10, 2001, Plaintiff and a co-worker, Scott Taylor, were lifting

the hood off of a pickup truck when Plaintiff sustained an injury to his neck. He notified Lou

Phillips immediately. Plaintiff worked the remainder of the day on light duty.

The next day Plaintiff still had pain and went to Baptist Minor Medical and then to Campbell

Clinic. He was seen by Dr. Douglas Linville at the Campbell Clinic who sent him to physical

therapy and prescribed medication. He returned to work the next day. On July 17th, 2001, Plaintiff

went to physical therapy and returned to work. A discussion ensued between Plaintiff and Mary

Phillips because she thought he had been gone longer than she expected, and Plaintiff was terminated

that day.

Plaintiff continued his physical therapy after termination and was referred to Dr. Ashley Park,

also at the Campbell Clinic. Dr. Park ordered an MRI and injected Plaintiff with two steroid blocks.

He was then referred to Dr. John Brophyand ultimately retrieved his medical records from Campbell

Clinic. His medical records contained a comment about a previous lawsuit and that the Plaintiff had

been videotaped "popping wheelies" on a four-wheeler.

Dr. Brophy reviewed the MRI and found cervical spondylosis, worse on the left at C5-6 and

C6-7, without definite evidence of nerve root or spinal cord compression. Wanting to rule out nerve

root compression, he ordered a myelogram/CT scan and later ordered a bilateral upper extremity

EMG/nerve conduction study. After reviewing these studies, according to Plaintiff, Dr. Brophy told

him that he did not hurt himself at work, that there was nothing wrong with him, and that he should

go back to work immediately. Plaintiff thereafter sought the services of Dr. Anthony Segal, a

neurosurgeon and provided him with his MRI for review. Dr. Segal ultimately performed surgery

on the Plaintiff. After his recovery period, he went back to work for the same company which was

under new ownership. At trial, Plaintiff was doing the same work that he was doing prior to his

injury with the exception of the heavy lifting.

Medical Evidence

Dr. John Brophy initially saw the Plaintiff on March 11, 2002. He reviewed the Plaintiff’s

MRI and opined that Plaintiff had cervical spondylosis, worse on the left at C-5-6 and C-6-7, without

definite evidence of nerve root or spinal cord compression. Based on Plaintiff’s severity of pain, Dr.

Brophy ordered a cervical myelogram/CT scan to rule out nerve root compression. His plan was that

if the myelogram demonstrated evidence of nerve root compression, they would discuss surgery. If
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not, they would discuss Plaintiff’s return to work. Dr. Brophy reasoned that the only reason to do

surgery would be to remove pressure from the nerve. Since there are many causes of pain in the neck

and arm other than pressure on a nerve, he wanted to verify the nerve pressure. He opined that the

myelogram is the “gold standard” to determine nerve root pressure. The myelogram/CT scan was

performed and there was still no definite evidence of a herniated disk or nerve root compression.

Because of Plaintiff’s continued complaints of bilateral upper extremity pain, Dr. Brophy

recommended an EMG/nerve conduction study. This study was within normal limits. Although

Plaintiff still described pain bilaterally, Dr. Brophy, based on evidence he had before him, cleared

Plaintiff to return to work without restrictions on April 16, 2002, with a permanent partial

impairment rating of zero. Dr. Brophy stated that generally if there is a significant disk herniation,

it is obvious, but at other times the findings are less obvious, and Plaintiff was in that category. On

the subject of justification for surgery, Dr. Brophy stated:

Dr. Brophy’s deposition, pages 12-13:

QUESTION: Okay. Going back to the March 15 visit, would you have–based only th

on the review of the MRI, would you have recommended surgery

without the myelogram CAT scan?

ANSWER: No.

QUESTION: And why not, Doctor?

ANSWER: Because his primary symptoms and clinical examination at that time

did not fit the abnormalities on the MRI, and ...there was not

definitive evidence of nerve root compression, which is the primary

issue that I am operating on.

QUESTION: And you came to the same conclusion after reviewing the myelogram

and CAT scan that you ordered?

ANSWER: Yes.

Dr. Brophy’s deposition, pages 20-21:

QUESTION: Okay. And one thing that Dr. Segal pointed out is when he presented

himself to Dr. Segal, by then his arm pain was almost exclusively left

arm pain, which from Dr. Segal’s point of view I would think was

very consistent with having an MRIthat showed a bulging disc on the

left?

ANSWER: Potentially, yes.
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QUESTION: Potentially. So without having— Dr. Segal didn’t have the CAT

scans and the myelograms that you had, and from his point of view

he had an MRI that showed left arm–or left disc--a disc on the left

side and then left arm pain that was consistent, so he went ahead and

did surgery. Was that—based on that, that seemed like a reasonable

thing to do, wouldn’t you say?

ANSWER: Again, it depends on the presentation, exact description of the pain,

what did the exam show. Potentially it could have fit. And, of

course, the real barometer to answer that question is how did he do

post-op.

QUESTION: And if he did well - - very well post op, that would be indicative that

there was some impingement on that nerve running down his left

arm? 

ANSWER: Yes. 

Dr. Brophy’s deposition, page 26:

QUESTION: Well, is the best evidence that he had compression on the nerve the

fact that after the surgery is over and a fusion is done he is not having

arm pain anymore?

ANSWER: Yes.

Dr. Brophy previously rated the Plaintiff at 0% permanent partial impairment with no

restrictions. However, he did state that had he done a one level anterior cervical diskectomy and

fusion on the Plaintiff, his rating would have been 10% based on the AMA Guides.

Plaintiff retrieved his medical records from Dr. Brophy, including the MRI and

myelogram/CT scan and sought a second opinion from Dr. Anthony Segal, a neurosurgeon. Dr.

Segal saw the Plaintiff initially on April 18, 2002. He reviewed the MRI, but Plaintiff purposely did

not provide Dr. Segal with the myelogram/CT scan or any of Dr. Brophy’s records. Dr. Segal noted

that the MRI showed two disk lesions, one very small between the C-6 and C-7 which he felt was

insignificant, and one between C-5 and C-6 with some bony spur and with some compression of the

cord and the nerve on the left side. He continued conservative treatment of the Plaintiff and

suggested Plaintiff try to return to work. Plaintiff returned to work for about three days, but had to

stop because of pain. In May 2002, Plaintiff returned to Dr. Segal with left arm and left shoulder

blade and shoulder pain. Dr. Segal suggested surgery on one level between C-5 and C-6 and a

fusion. The surgery was performed on May 31, 2002. During surgery, Dr. Segal noted that the

Plaintiff’s posterior longitudinal ligament appeared to have been stretched for at least six months,
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which indicated to him that Plaintiff had a long-standing disk problem. He stated this condition will

not show up on an MRI, a CT scan, a myelogram or EMG.

Aftersurgery, the Plaintiff did well. After a recovery period, Plaintiff returned to work. Dr.

Segal opined the Plaintiff’s accident at work caused the herniated disk that he saw and rated his

anatomical impairment at 25% to the whole body in accordance with the AMA Guides. He stated

that prior to his testimony he had not seen the myelogram, the post myelogram CT scan, or the EMG/

nerve conduction study. He stated that had he seen them, and they were normal, it was possible he

would have thought longer and harder and may not have done the surgery. But given the results, it

worked out better for the Plaintiff, according to Dr. Segal.

Standard of Review

Appellate review is de novo upon the record of the trial court, accompanied by a presumption

of the correctness of the findings of facts, unless the preponderance of the evidence is otherwise.

Tenn. Code. Ann. § 50-6-225(e)(2) (Supp. 2002). The reviewing court is required to conduct an

independent examination of the record to determine where the preponderance of the evidence lies.

Wingert v. Government of Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995). The standard

governing appellate review of findings of fact by a trial court requires the Special Workers'

Compensation Panel to examine in depth a trial court's factual findings and conclusions. GAF Bldg.

Materials v. George, 47 S.W.3d 430, 432 (Tenn. 2001). The trial court's findings with respect to

credibility and weight of the evidence may generally be inferred from the manner in which the court

resolves conflicts in the testimony and decides the case. Tobitt v. Bridgestone/Firestone, Inc., 59

S.W.3d 57, 61 (Tenn. 2001). Where the trial court has seen and heard witnesses, especially where

the issues of credibility and weight of oral testimony are involved, considerable deference must be

accorded the trial court's factual findings. Humphrey v. David Witherspoon, Inc., 734 S.W. 2d 315

(Tenn. 1987). The extent of an injured worker's vocational disability is a question of fact. Seals v.

England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999). 

As to the first three issues raised by the Defendant, the Court feels that they are interrelated

and we will deal with them as such.

1. Whether the Plaintiff failed to carry his burden of proof in establishing that he

suffered a permanent injury on July 10, 2001, and that he had an operative disk lesion which

necessitated surgery. 

In orderto be eligible for workers compensation benefits, an employee must suffer “an injury

by accident arising out of and in the course of employment which causes either disablement or

death.” Tenn. Code Ann. § 50-6-102 (12). The phrase “arising out of” refers to causation. The

causation requirement is satisfied if the injury has a rational, causal connection to the work. Reeser

v. Yellow Freight Systems, Inc., 938 S.W.2d 690,692 (Tenn. 1997). Although causation cannot be

based upon merely speculative or conjectural proof, absolute certainty is not required. Any

reasonable doubt in this regard is to be construed in favor of the employee. We have thus
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consistently held that an award may properly be based upon medical testimony to the effect that a

given incident “could be” the cause of the employee’s injury, when there is also lay testimony from

which it reasonably may be inferred that the incident was in fact the cause of the injury. Id.

It is well settled in this state that a plaintiff in a workers' compensation case has the burden

of proving every element of this case by a preponderance of the evidence. Elmore v. Travelers Ins.

Co., 824 S.W.2d 541, 543 (Tenn. 1992). Medical causation and permanency of an injury must be

established in most cases by expert medical testimony. See, e.g., Thomas v. Aetna Life & Cas. Co.,

812 S.W.2d 278, 283 (Tenn. 1991). With these principles in mind, we review the record to determine

whether the evidence preponderates against the findings of the trial court.

Plaintiff testified that he injured himself on July 10, 2001, while he and a co-worker, Scott

Taylor, were lifting a hood off a pick-up truck when both were employed with Phillips Auto Body,

LLC. This incident was confirmed by Scott Taylor in his testimony and the employee’s accident

report on July 11, 2001. The Plaintiff immediately notified one of the owners of the shop, Lou

Phillips. He was put on light duty for the balance of the work day. Plaintiff sought medical

treatment the next day for which the employer paid. The trial judge made a finding of fact that the

Plaintiff sustained an injury to his neck and arms while on the premises of his employer, while lifting

the hood of a pick-up truck.

Plaintiff initially saw Dr. Linville whose records indicate symptoms of radiculapathy

consistent with nerve root compression between C5-6 on the right side. Dr. Ashley Park’s records

indicate he felt Plaintiff may have suffered a cervical disk injury. Dr. Park ordered the MRI which

indicated a central disk protrusion at C5 and a posterior disk protrusion at C6. Dr. Park’s medical

records contain a note that information from the claims adjuster states that Plaintiff was videotaped

“popping wheelies” on a four wheeler with a child on the back and that the adjuster was concerned

that since he had already gotten a settlement for his lumbar spine ($80,000.00) he is headed the same

way with his neck.

After being treated by Drs. Linville and Park, Plaintiff was referred to Dr. Brophy, a

neurosurgeon. Dr. Brophy, after extensive testing, opined that the Plaintiff’s injury was not

permanent, and released him to go back to work with a zero impairment rating. He based this

opinion primarily on his belief that there was no definite evidence of cord or nerve root compression

which would justify doing surgery. While Dr. Brophy stated his opinion that the myelogram was the

“gold standard” to determine nerve root pressure, he did state also that the real barometer to answer

that question is how the patient did after the operation. 

Dr. Segal initially saw Plaintiff on April 18, 2002, and reviewed the medical records of Drs.

Linville and Park at the Campbell Clinic. He also reviewed the Plaintiff’s MRI, but did not have the

myelogram/CT scan or EMG performed while Plaintiff was under Dr. Brophy’s care. Dr. Segal

diagnosed a C5-6 disk lesion and after conservative treatment failed to provide relief to the Plaintiff,

Dr. Segal performed an anterior cervical diskectomy and fusion of C5 and C6. During surgery, Dr.

Segal discovered a “floppy” ligament that had been stretched by the disk. This indicates the ligament
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had been stretched for at least six months. In his opinion this was further verification of his initial

diagnosis of a disk lesion. After a recovery period, Plaintiff’s pain was gone and he returned to

work.

Dr. Segal opined that Plaintiff had suffered a twenty-five percent (25%) impairment to the

whole body based on the AMA Guides. Dr. Segal explained that sometimes a disk herniation is

dramatic and obvious and that the surgeon can clearly see the pressure has been removed from the

nerve and that had to have been the source of the problem. There are other times when the findings

are less impressive and less obvious, and Plaintiff fell into this later category.

Dr. Brophy and Dr. Segal disagreed concerning the significance of the Plaintiff’s “floppy

ligament.” Dr. Brophy said that the presence of a floppy ligament had no significance as to a

herniation. Dr. Segal stated that it indicated a disk that had been herniated for at least six months.

They also disagreed concerning the importance of the myelogram/CT scan and EMG in diagnosing

the disk lesion. Dr. Brophy said the myelogram was the “gold standard.” Dr. Segal said it is not the

myelogram which is most specific, but the CAT scan after the myelogram. The CT scan after the

dye has been put in place is slightly more accurate than the MRI, but only about one (1) or two (2)

percent difference, particularly in somebody young like the Plaintiff. Dr. Segal did not think the post

myelogram CT has much to offer, nor did he think that the EMG nerve conduction study would show

that much in the case of a surgical disk.

When faced, as in the case before us, with conflicting medical testimony on these issues, "it

is within the discretion of the trial judge to conclude that the opinion of certain experts should be

accepted over that of other experts and that it contains the more probable explanation." Hinson v.

Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-77 (Tenn. 1983) (citing Combustion Engineering, Inc.

v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)). It should be noted that the rule set out in Hinson

remains valid even though Hinson was decided under the "material evidence" standard of review.

In light of the foregoing evidence, we are persuaded that there is ample evidence in the record

to support the trial court's finding that the Plaintiff carried his burden of proof in establishing that

he suffered a permanent injury on July 10, 2001, and that he had an operative disk lesion which

necessitated surgery. We therefore affirm the trial court's findings in this regard.

2. Whether the trial court erred in awarding unpaid medical expenses to Plaintiff

because Plaintiff failed to request authorization of the Defendant for the treatment by Dr.

Segal.

Tennessee Code Annotated Section 50-6-204 (a)(4)(A) provides that the employer shall

furnish such medical care as is reasonably required for a compensable injury and that:

(4) The injured employee shall accept the medical benefits afforded

hereunder; provided that the employer shall designate a group of three

(3) or more reputable physicians or surgeons not associated together
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in practice, if available in that community, from which the injured

employee shall have the privilege of selecting the operating surgeon

or attending physician.

After being sent to Dr. Brophy, and not receiving any relief, Plaintiff desired a second

opinion. He informed Dr. Brophy of this request, and Dr. Brophy provided Plaintiff with his test

results. Plaintiff was referred to Dr. Segal by his regular physician for other unrelated complaints.

Since these complaints had resolved themselves before his appointment, Plaintiff decided to use the

appointment to discuss his work injury. On his first visit, he provided Dr. Segal with the August

2001 MRI and the records of Dr. Linville and Dr. Park. He intentionally withheld the

myelogram/CT scan and EMG studies given to him by Dr. Brophy. Plaintiff did not seek

authorization from Defendant for the treatment rendered to him by Dr. Segal.

Plaintiff indicated that he withheld all references to Dr. Brophy because he did not trust Dr.

Brophy. When he initially saw Dr. Brophy he was informed that his case worker had already been

there talking to Dr. Brophy for about a half an hour. This was apparently the same case worker who

had informed the Plaintiff’s previous doctor that Plaintiff had been “popping wheelies on a fourwheeler.” This information later at trial was proven to be false. Plaintiff felt that Dr. Brophy was

short with him and seemed to have an "attitude" with him. 

Plaintiff had experienced difficulties with the Defendant’s insurance carrier and the

Defendant. Defendant had terminated Plaintiffshortly after the injury. Plaintiff’s claim for workers'

compensation benefits was denied. Plaintiff had to file suit to obtain his temporary benefits.

Defendant had a private investigator videotaping the Plaintiff but who was also videotaping

Plaintiff’s brother by mistake. It was Plaintiff's brother who was videotaped riding the four-wheeler.

From a review of all the medical and lay testimony, the Panel is persuaded that if Plaintiff

had taken Dr. Brophy’s advice and not had surgery, he may have not been able to return to work.

By seeking a second opinion and ultimately having surgery, Plaintiff was at trial time back at work

and doing well.

The trial court has authority to order that the employer pay for unauthorized medical care if

the employee fails to consult the employer beforehand when the circumstances warrant such an

Order. The Court has stated the following proposition:

Whether an employee is justified in seeking additional medical

services to be paid for by the employer, without consulting the

employer, depends on the circumstances of each case. Bazner v.

American States Ins. Co., 820 S.W.2d 742, 746 (Tenn.1991); see also

Dorris v. INA Ins. Co., 764 S.W.2d 538, 540-41 (Tenn. 1989).

The trial court found that Dr. Segal’s surgery and related expenses were all paid for by

TennCare, Plaintiff’s health insurance carrier. Since the trial court ordered Defendant to reimburse
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TennCare for its cost of the surgery by Dr. Segal, the trial court evidently believed that the proof

supported such payments. The trial court's findings on this issue are as follows:

The treatment rendered to the Plaintiff by Dr. Anthony Segal and the

expenses incurred from Dr. Segal, Saint Francis Hospital, and all

other providers in relation to the surgery were reasonable and

necessary as a result of said injury.

TennCare must be reimbursed by the Defendant, First American

Insurance Company, for any and all medical expenses paid on behalf

of the Plaintiff, David Stupp, to Dr. Anthony Degal, Saint Francis

Hospital, and all other providers in relation to the surgery.

The trial court heard the testimony of Plaintiff, viewed the videotapes of the defendant and

his brother, and apparently credited the Plaintiff's testimony that he had reason to distrust Dr. Brophy

under the totality of the circumstances.

From our analysis of the record, we cannot find that the evidence preponderates against the

trial court's determination that the expenses related to Dr. Segal's surgery were reasonable and

necessary as a result of the injury. Accordingly, we affirm the trial court’s ruling that the expenses

for Dr. Segal’s surgery were reasonable and necessary.

3. Whether the evidence preponderates against the trial court’s finding that Plaintiff

retains a twenty-five percent (25%) disability impairment to the body as a whole.

The extent of vocational disability is a question of fact to be determined from all of the

evidence, including lay and expert testimony. Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234

(Tenn. 1990). In making determinations of vocational disability, the court shall consider all pertinent

factors, including lay and expert testimony, employee's age, education, skills and training, local job

opportunities, and capacity to work at types of employment available in claimant's disabled

condition. Tenn. Code Ann. § 50-6-241 (a)(1); Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384

(Tenn. 1986).

In this case, the medical proof provided the following anatomical impairment ratings to the

body as a whole: 1) Dr. Segal assigned a twenty-five percent (25%) impairment rating; 2) Dr. Brophy

assigned a zero percent (0%) impairment rating, but also said that if he had performed the same

surgery that Dr. Segal had performed on Plaintiff, his rating would have been ten percent (10%). Dr.

Segal stated that according to the AMA Guides, Plaintiff must be rated under the DRE method. He

stated this is the first injury at one level, and for fusion, which gives him loss of motion segment

integrity, he gets a permanent partial impairment rating of twenty-five percent (25%) to the body as

a whole. Dr. Brophy acknowledged the example in the Guides referred to by Dr. Segal that rates a

patient who had a fusion and did well at twenty-five percent (25%). However, he opined that the

AMA Guides contradict themselves as to the ratings given for surgery of this nature and that his
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standard rating for a surgery such as the Plaintiff’s was ten percent (10%). Dr. Brophy stated that

he used the range of motion method which is appropriate in a two-level surgery. Under this rating

method, the range of motion must be actually tested. Dr. Brophy did not actually test Plaintiff’s

range of motion because he never saw Plaintiff after his surgery. Dr. Brophy rated Plaintiff with an

eight percent (8%) impairment for the surgery and an additional two percent (2%) for a range of

motion which he described as “generous.”

The trial court made a finding that there was nothing in the record to indicate to a reasonable

degree of medical certainty whether Dr. Brophy’s two percent (2%) rating for a loss of range of

motion is indeed “generous,” equitable, or overly conservative. Plaintiff testified, and the trial court

found, that the Plaintiff demonstrated some loss of range of motion in bending his neck forwards,

extending his neck backwards, and tilting his head from side to side. The court further found that

Plaintiff was unable to lift the heavy car parts that he lifted prior to his injury. Scott Taylor,

Plaintiff’s co-worker at the time of his injury and at the time that he returned to work for his new

employer, testified that prior to the Plaintiff’s injury, Plaintiff did heavy work, but that after the

injury he did not see Plaintiff do any heavy work. Plaintiff testified that being a frame technician

can be a heavy lifting job, requiring the lifting of doors, tailgates, beds on trucks, hoods and anything

heavy on a car that comes off. Plaintiff testified that he operates two frame machines now in his

current job, but has helpers that go from one machine to the other to do the things that he is not able

to do. Plaintiff testified that he no longer does any heavy lifting for his new employer. He stated

that he gets help from co-workers to do heavy lifting required in his work. Plaintiff stated that if he

lost his current job as a “frame man,” he would have to find someone who would employ him under

the same circumstances, and that he had never seen a job like that. Plaintiff’s work history is one

of manual labor involving heavy lifting. Plaintiff was 38 years old at the time of trial and was

educated to the eleventh grade. Plaintiff was terminated by his employer shortly after the injury

occurred and did not return to work with his pre-injury employer.

It is well settled that a claimant’s anatomical disability rating is but one factor in considering

the extent of vocational disability. Roark v. Liberty Mutual Ins. Co., 793 S.W.2d 932, 934.

Plaintiff's own assessment of his physical condition is competent testimony and cannot be

disregarded. Tom Still Transfer Co. v. Way, 482 S.W.2d 775,777 (Tenn. 1972); Walker v. Saturn

Corp., 986 S.W.2d 204, 208 (Tenn. 1998).

Here the Plaintiff is 38 years old, has an eleventh grade education and a job history of manual

labor as an autobody frame technician. While Plaintiff has returned to work, he is now unable to lift

the heavy car parts that he lifted prior to his injury. He currently has helpers to do the things he is

not able to do. He no longer does any heavy lifting for his new employer. Plaintiff testified that if

he lost his job as a "frame man" he would have to find another employer who would employ him

under these same circumstances. Plaintiff testified that he does not know of a job like that. 

An examination of these factors preponderates in favor of an increase in the trial court’s

assessment of vocational disability and in favor of a finding of forty-five percent (45%) permanent

partial disability to the whole body. 
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CONCLUSION

We hold that the evidence preponderates against the trial court’s assessment of a twenty-five

percent (25%) vocational disability rating to the Plaintiff’s body as a whole. After consideration of

all the appropriate factors, we modify the judgement of the trial court and award a forty-five percent

(45%) vocational disability to the body as a whole. As modified, the judgment is affirmed. Costs

are assessed to the Appellants, Phillips Autobody, LLC and First American Insurance Company, for

which execution may issue if necessary.

____________________________________

JAMES F. BUTLER, SPECIAL JUDGE
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IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

DAVID STUPP, et al, v. PHILLIPS AUTO BODY, LLC & FIRST

AMERICAN INSURANCE COMPANY, et al

No. W2003-00825-SC-WCM-CV - Filed November 30, 2004

ORDER

This case is before the Court upon motion for review pursuant to Tenn. Code Ann.

§ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers'

Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact

and conclusions of law, which are incorporated herein by reference;

Whereupon, it appears to the Court that the motion for review is not well-taken and

should be denied and

It is, therefore, ordered that the Panel's findings of fact and conclusions of law are

adopted and affirmed, and the decision of the Panel is made the judgment of the Court. 

Costs on appeal are taxed to the Appellants, Phillips Auto Body, LLC, and First

American Insurance Company.

IT IS SO ORDERED this 30 day of November, 2004. th

PER CURIAM

Holder, J. - not participating.