IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 7, 2004 Session

DOMINIC P. PELLICANO v. METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY

 Appeal from the Circuit Court for Davidson County

No. 00C-3678 Carol Solomon, Judge

No. M2003-00292-COA-R3-CV - Filed February 23, 2004

Plaintiff, who had a pre-existing herniated disk, was rear-ended in a vehicular accident seven weeks

after the first injury. A diskectomywas performed six months later. Treating physician equivocated

when asked whether the diskectomy was necessitated by the second injury, testifying, “maybe yes;

maybe no.” Trial court found that Plaintiff’s need for surgery was caused by incident and awarded

Plaintiff judgment against Defendant for all medical expenses related to the surgery, lost wages and

pain and suffering. Plaintiff did not present sufficient proof to establish that incident was cause in

fact of need for surgery for physician could not state with reasonable degree of medical certainty that

need for surgery was the result of the incident. Further, lay testimony of Plaintiff and Plaintiff’s

brother was insufficient to prove cause in fact of Plaintiff’s need for surgery. Accordingly, we

reverse the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed, Modified and Remanded

FRANK G.CLEMENT,JR., J., delivered the opinion of the court, in which WILLIAM C.KOCH,JR.,P.J.,

M.S., and PATRICIA J. COTTRELL, J., joined.

Lora A. Barkenbus, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville

and Davidson County.

Robert H. Plummer, Jr., Franklin, Tennessee, for the appellee, Dominic P. Pellicano.

OPINION

The issue is whetherthe plaintiff, who suffered from a pre-existing herniated disk, presented

sufficient proof to establish that the incident with the defendant’s ambulance was the cause in fact

for surgery to repair the herniated disk and 100% of the resulting medical expenses, lost wages and

pain and suffering.
A workers’ compensation action, Davidson County Circuit Court Docket No. 00C-2706, was filed by Dominic 1

Pellicano against A-H Mechanical Contractors, Inc. The record does not indicate whether Pellicano received any

recovery from that action.

 Dr. Guillermin performed the diskectomy.

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Plaintiff/Appellee, Dominic Pellicano (Pellicano) was involved in an on-the-job accident on

November 2, 1999 while working for A-H Mechanical Contractors, Inc., when a one hundred pound

pipe fell on his neck and shoulder. Pellicano sought medical care, and X-rays were taken which

revealed a herniated disk. Pellicano filed a workers’ compensation claim and alleged that he

sustained the herniated disk as a result of the November 2, 1999 on-the-job injury. His employer and

workers’ compensation carrier contested the claim.1

Seven weeks later, on December 27, 1999, Pellicano was involved in a “rear-end” incident

in which his vehicle was struck from behind by a Nashville Fire Department ambulance. The

ambulance was driven by William Jones. Ricky Wilson, a paramedic, was in the rear of the

ambulance treating two patients. The ambulance was moving slowly in bumper-to-bumper traffic,

at approximately five (5) miles per hour. Jones attempted to stop the ambulance slowly so as not to

throw the patients and Wilson around in the back of the ambulance; however, he was unable to stop

before hitting Pellicano’s vehicle from the rear. Wilson, who was standing in the rear of the

ambulance when the wreck occurred, testified that the incident was so subtle that he was not knocked

off his feet. Jones and Wilson spoke to Pellicano immediately after the accident. Pellicano stated

to them that he was not hurt and did not need nor desire medical care. No one in the ambulance

sustained any injuries as a result of the incident.

Following the incident at issue, Pellicano continued to work and did not seek medical care

until four months later. Pellicano first sought medical care for injuries related to the rear-end

incident on May 4, 2000; however, he did not return to the doctor who treated him for the on-the-job

injury. Instead, Pellicano went to Dr. John P. Guillermin. Following a brief period of conservative

treatment, Dr. Guillermin recommended surgery to repair Pellicano’s herniated disk. The surgery

was performed on June 19, 2000. After surgery, Pellicano remained off work until September 18,

2000 when he was released to return to work. Pellicano has not received any medical treatment since

the surgery.

Pellicano filed this personal injury action against the Metropolitan Government of Nashville

and Davidson County, Tennessee (Defendant), theNashville Fire Department and William R. Jones,

the ambulance driver. By agreed order, William Jones and the Nashville Fire Department were

dismissed from the lawsuit. 

The case was tried without a jury. Witnesses at trial included Pellicano; his brother, Peter

Pellicano; the ambulance driver, William Jones; and the other paramedic in the ambulance, Ricky

Wilson. The testimony of Dr. Guillermin, Pellicano’s treating physician, was presented through his

deposition. 

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The trial court held that Pellicano’s pre-existing neck injury was exacerbated by the incident

and that the incident was the sole cause in fact for Pellicano’s need for a diskectomy. Defendant was

held liable for 100% of the medical expenses related to the surgery, plus lost wages and pain and

suffering. Specifically, Pellicano was awarded $41,580 for medical bills, $5,500 for lost wages and

$45,000 for pain and suffering for a total award of $92,080. The trial court did not allocate any of

Pellicano’s damages to the pre-existing injury or to Pellicano’s employer.

Standard of Review

An appellate court’s review of a trial court’s findings of fact 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. R. App. P. 13(d). Unless there is an error of law,

we must affirm the trial court’s decision as long as the evidence does not preponderate against the

findings. Umstot v. Umstot, 968 S.W.2d 819, 821 (Tenn. Ct. App. 1997). 

The weight, faith and credit to be given to a witness’ testimony lies with the trial judge in a

non-jury case because the trial judge had an opportunity to observe the manner and demeanor of the

witness during their testimony. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991);

Weaver v. Nelms, 750 S.W.2d 158, 160 (Tenn. Ct. App. 1987). In reviewing documentary proof

such as deposition testimony which was presented to the trial court, “all impressions of weight and

credibility are drawn from the contents of the evidence, and not from the appearance of witnesses

and oral testimony at trial.” Wells v. Tennessee Board of Regents, 9 S.W.3d 779, 783-784 (Tenn.

1999). An appellate court “may make an independent assessment of the credibility of the

documentary proof it reviews without affording deference to the trial court’s findings.” Id. at 783.

When the proof is presented through a deposition, the appellate court can just as well judge the

credibility of the witness as the trial court. Id. 784. There is no presumption of correctness with

respect to the trial court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35

(Tenn.1996) and Tenn. R. App. P. 13(d).

Analysis

 The defendant contends that it is not responsible for 100% of Pellicano’s injuries and

resulting damages because Pellicano had a pre-existing herniated disk; emphasizing the fact that the

pre-existing injury occurred a mere seven weeks prior to the incident at issue. Moreover, Defendant

contends that while the incident may have exacerbated a pre-existing injury, the court should have

apportioned the damages because the proof was insufficient to establish that the incident was the sole

and proximate cause of Pellicano’s need for the diskectomy. Defendant therefore concludes that the

proof was insufficient to hold Defendant liable for all expenses related to the surgery, lost wages

resulting from the surgery, and pain and suffering related to the surgery and recovery from surgery.

A cause of action for negligence requires that five elements be established : (1) a duty of care

owed by the defendant to the plaintiff; (2) conduct that falls below the applicable standard of care

such that there is a breach of the duty of care; (3) an injury or loss; (4) causation in fact; (5) and
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proximate or legal cause. McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). In this case

Defendant concedes that it is responsible for exacerbating Pellicano’s condition; thus, we need not

address the first three elements and begin our inquiry with a focus on the fourth element, causation,

to determine if the incident was the cause in fact for Pellicano’s surgery. “Causation, or cause in

fact, means that the injury or harm would not have occurred ‘but for’ the defendant’s negligent

conduct.” Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). In situations where two

independent causes are present which alone could have produced the injury, the “but for” test may

not be as effective and the court may consider whether the defendant’s conduct was a “substantial

factor” in bringing about the harm. Waste Management, Inc. of Tennessee v. South Central Bell

Telephone Company, 15 S.W.3d 425, 431 (Tenn. Ct. App. 1997). The plaintiff has the “burden of

introducing evidence that affords a reasonable basis for concluding that it is more likely than not that

the defendant’s conduct was a cause in fact of their injury.” Waste Management at 433 (citing Cook

v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 939 (Tenn. 1994).

 The issue of causation in fact should be resolved before undertaking the issues of legal cause

or allocating fault. Waste Management at 433. “Once it is established that the defendant’s negligent

conduct was, in point of fact, the actual cause of the plaintiff’s injury or harm, the focus then

becomes whether the policy of the law will extend responsibility for that negligent conduct to the

consequences that have occurred.” Kilpatrick at 598. Thus, we must first find that the incident was

the cause in fact for the surgery as opposed to an injury to a lesser extent before considering whether

the final element, that of proximate cause, has been satisfied.

Pellicano insists that his injuries, specifically the need for surgery, resulted from the incident

with Defendant’s ambulance, not the prior injury. He testified that the prior injury was not causing

him any pain at the time of the incident with the ambulance, and that he was successfully recovering

from the prior injury, though he was more vulnerable to injury. Pellicano further testified that he

missed no work as result of the prior injury and was only placed on “light duty status” as a result of

that injury. Pellicano’s brother, Peter Pellicano, testified, stating that after the prior injury Pellicano

was wearing a neck brace but getting better and that Pellicano, “did the normal things around the

house, he did the shopping, mowed the lawn, whatever, played football with the guys, . . . . ” 

The liability of one who negligently or unlawfully injures the person of another is not

to be measured by the physical strength of the party injured or his capacity to endure

suffering. One of weak physical structure, or small vitality, or in ill health, has as

much right to protection from violence as a robust athlete, and in either case the

physical injury, the bodily harm, which is actually caused by the violence, whether

one be strong or weak, healthy or sick, is the natural consequences of the wrong. The

defendant is responsible for all ill effects which naturally and necessarily follow the

injury in the condition of health in which the plaintiff was at the time of the fall, and

it is no defense that the injury might have been aggravated and rendered more

difficult to cure by reason of plaintiff's state of health at that time, or that by reason

of latent disease the injuries were rendered more serious to her than they would have

been to a person in robust health. If the afflictions which plaintiff had before the fall
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did not cause her pain and suffering, as she says they did not, but after the fall they

did cause pain and suffering, the fall is the proximate cause of the injuries sustained.

The defendant is not entitled to receive a reduction of the damages which plaintiff

suffered on account of such infirmities. The foregoing statement of the rule is

supported by a great preponderance of authority. 

Elrod v. Town of Franklin, 204 S.W. 298, 301 (Tenn. 1918).

An often stated principle is that a tort feasor must accept the person as he finds him and the

person injured by the tort feasor is entitled to recover all damages proximately caused by the acts of

the tort feasor. A defendant is not “responsible for plaintiff’s previous condition, except to the extent

of aggravation or enhancement by defendants’ acts.” Haws v. Bullock, 592 S.W 2d. 588, 591 (Tenn.

Ct. App. 1979). Thus, a plaintiff may recover for an increase in disability, but not for the total

disability which resulted from the pre-existing condition plus aggravation of the pre-existing

condition caused by the accident. Kincaid v. Lyerla, 680 S.W.2d 471, 473 (Tenn. Ct. App. 1984).

A concise statement of the law regarding the aggravation of a pre-existing condition is found

in the Tennessee Pattern Jury Instructions.

A person who has a condition or disability at the time of an injury is entitled

to recover damages only for any aggravation ofthe pre-existing condition. Recovery

is allowed even if the pre-existing condition made plaintiff more likely to be injured

and even if a normal, healthy person would not have suffered substantial injury.

A plaintiff with a pre-existing condition may recover damages only for any

additional injury or harm resulting from the fault you may have found in this case.

Damages shall include all the additional harm or disability even though it is greater

because of the pre-existing condition [and even though the pre-existing condition

caused no harm or disability before the occurrence].

T.P.I. 3-Civil 14.14.

It is undisputed that Pellicano had a pre-existing injury. Moreover, Defendant has conceded

that the incident “exacerbated” Pellicano’s pre-existing condition and that the medical expenses for

conservative care by Dr. Guillermin from the date of the incident up to the date of the surgery, in the

amount of $1,277.20, were reasonable and necessary. While Defendant does not contest this portion

of the award for medical expenses, it vigorously contends that Pellicano failed to present competent

evidence sufficient to establish that the surgery was necessitated by the exacerbation of the preexisting injury, arguing that the evidence established that it is just as likely that Pellicano would have

needed the surgery if the incident had not occurred.

The testimony of Dr. Guillermin is central to the issue of whether there is sufficient evidence

to establish that the surgery was necessitated by the incident. Dr. Guillermin did not treat Pellicano
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for the injury that occurred prior to the incident. Moreover, Dr. Guillermin did not see Pellicano

before the incident and did not see nor treat him for any condition until May 4, 2002, some four

months after the incident at issue. Dr. Guillermin initially treated Pellicano conservatively and then

recommended a diskectomy. He performed the diskectomy on June 19, 2000. Dr. Guillermin

testified by deposition. The following are pertinent parts of his testimony from the first of two

depositions:

Q Doctor, can you tell me some more about what caused this man’s injuries?

Can we say whether his herniated disc was caused by the work comp accident

or by the auto accident?

A The diagnostic imaging, which confirmed the diagnosis of a herniated disc,

was done prior to the auto accident. So it doesn’t make any difference what

caused that. How it stands there, in relation to the auto accident, is of

question. He had a ruptured disc before the auto accident, so the auto

accident did not cause a ruptured disc; it exacerbated his symptoms. 

Q I’m sorry, what kind of test did you say showed that he had a ruptured disc

before?

A myelogram, followed by a CT scan.

Q So the work comp accident actually caused the herniated disc?

A Well, it hasn’t been decided what caused the herniated disc. It makes no

difference what caused the herniated disc, because whatever caused it, it was

proved to be present on that day, and therefore anything that happens

thereafter would exacerbate it.

Q Okay. But the auto accident didn’t actually cause the herniation?

A That’s correct. I mean he had a herniated disc before the auto accident.

Q And is it possible he would have had to have a diskectomy regardless of

whether he had the auto accident?

Mr. Plummer: Object to the form of that. You may go ahead

and answer.

MS. BARKENBUS: (CONTINUING)

The Witness: Yes.

Q Do you know whether he would have had to have a diskectomy regardless of

the auto accident? I’m asking the same question a different way.

Mr. Plummer: I object.

The Witness: There are no statistics on that to base a statement. 

The answer is maybe yes; maybe no.

Dr. Guillermin was deposed a second time, several months later, in which the following exchange

took place:

Q In your last deposition you said that he might have needed a diskectomy even

if he had never had the auto accident; is that correct?
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. . . . . 

BY MS. BARKENBUS:

Q Do you recall saying that?

A I believe that was the question and I said maybe, yes.

Q Maybe, yes, that he might have needed the diskectomy, even if he had never

had the auto accident?

A I believe that was the answer to the question previously.

Q Is that still your answer?

A Exactly as it was in the previous deposition, yes.

Q That he might have needed it anyway?

A Correct.

Q So you can’t say with medical--a reasonable degree of medical certainty that

the auto accident caused him to have the diskectomy, can you?

A Repeat that question, please.

Q Do we know that the--I’m sorry, let me start over. Do we know that the auto

accident was the absolute reason that he needed to have the diskectomy?

A It wasn’t the absolute reason.

Q Okay. And he may have needed to have one even if he hadn’t had the auto

accident; right?

A Correct.

In most cases medical causation and permanency must be established by expert medical

testimony. Thomas v. Aetna Life & Cas. Co. 812 S.W.2d 278, 283 (Tenn. 1991). If such testimony

is speculative in nature, it is insufficient to establish causation. Primm v. Wickes Lumber Co., 845

S.W.2d 768, 771 (Tenn. Ct. App. 1992). The foregoing reveals that Dr. Guillermin, in response to

several similar questions pertaining to whether the incident brought about the need for surgery,

offered the flexible opinion: “maybe yes; maybe no” or words to that effect. When called upon to

consider what is and is not sufficient proof to establish causation, our Supreme Court stated:

"The plaintiff must introduce evidence which affords a reasonable basis for the

conclusion that it is more likely than not that the conduct of the defendant was a

cause in fact of the result. A mere possibility of such causation is not enough; and

when the matter remains one of pure speculation or conjecture or the probabilities are

at best evenly balanced, it becomes the duty of the court to direct a verdict for the

defendant. . . . Prosser, Sec. 41, p. 269.

. . . . . 

"A doctor's testimony that a certain thing is possible is no evidence at all. His opinion

as to what is possible is no more valid than the jury's own speculation as to what is

or is not possible. Almost anything is possible, and it is thus improper to allow a jury

to consider and base a verdict upon a 'possible' cause of death." Palace Bar, Inc. v.
 The court in Taylor v. Dyer recognized that it was deriving this reasoning regarding causation and the use of 3

lay testimony from worker’s compensation cases but opined that the principles would also apply to an auto accident case

as was involved in Taylor.

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Fearnot, 269 Ind. 405, 381 N.E.2d 858, 864 (1978). "The mere possibility of a

causal relationship, without more, is insufficient to qualify as an admissible expert

opinion." Kirschner v. Broadhead, 671 F.2d 1034, 1039 (7th Cir.1982). 

. . . . . 

Nevertheless, a mere possibility is not an affirmative basis for a finding of fact. "In

the language of the law of evidence, [a medical opinion suggesting] that which is

merely possible, standing alone and not offered as auxiliary or rebuttal testimony is

immaterial to the ascertainment of the fact and so is inadmissible as evidence of that

fact." Martin v. United States, 284 F.2d 217, 219 (D.C. Cir. 1960). Kirschner v.

Broadhead, supra, 671 F.2d at p. 1039-1040.

Lindsey v. Miami Development Corp. 689 S.W.2d 856, 861-862 (Tenn.1985).

Dr. Guillermin’s testimony pertaining to the important issue of whether the need for surgery

was caused by the incident with the ambulance, “maybe yes; maybe no,” is the epitome of being

equivocal. Accordingly, we find that Dr. Guillermin’s testimony, standing alone, is insufficient to

establish that Defendant is liable for damages attributable to the surgery. However, an inference of

causation may be drawn by the trial court where equivocal medical proof is combined with other

evidence which supports a finding of causation. Taylor v. Dyer, 88 S.W.3d 924, 926 (Tenn. Ct. App.

2002) (quoting Tindall v. Waring Park Assoc., 725 S.W.2d 935, 937 (Tenn. 1987)). “Causation 3

may be established by a combination of medical and lay testimony.” Id. at 926. Thus, our next step

is to analyze whether any other evidence presented by Pellicano is sufficient to show that the

ambulance accident caused the need for surgery.

Pellicano and his brother, Peter, testified that he was injured prior to the ambulance accident,

when a pipe fell on his neck and shoulder at work, but he did not miss any work because of the prior

injury. Peter Pellicano testified that Pellicano had recovered from the on-the-job injury and was

doing the shopping, mowing the yard and playing football “with the guys,” but that after the incident

he could not do work around the house, pick up heavy items when shopping or mow the lawn. He

also testified that Pellicano was in great pain after the incident and was losing a great deal of sleep

after the incident. 

Pellicano testified that he was restricted to “light duty” work by his first doctor, that he only

suffered from pain in his shoulder and that he was “fine” before the incident. He stated that he was

wearing a neck brace on the day of the incident but was not wearing it when the incident occurred.

Pellicano admitted that he told the driver of the ambulance and the other paramedic (Jones and

Wilson) that he was not injured. He further admitted that he did not seek medical care for four
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months after the incident, explaining that he did not seek medical care until he began suffering

persistent numbness in his arms and fingers, pain, headaches and loss of sleep. 

Pellicano testified that his injuries and surgery were the result of the incident with

Defendant’s ambulance; however, on cross examination the defense challenged the basis of his

opinion as to causation. 

BY MS. BARKENBUS:

Q Okay. Your worker’s comp accident was about seven weeks before the

ambulance accident; right?

A I believe so, yes.

Q And you had pain in your arm as a result of the worker’s comp accident,

didn’t you?

A Yes.

Q And I think you testified that you had pain from your shoulder to your elbow

as a result of that --

A Yes.

Q -- worker’s comp accident? And the pipe that fell on you was about 20 feet

long, wasn’t it?

A Pretty close, yes.

Q And it was about 100 pounds, wasn’t it?

THE COURT: He had pain from his shoulder to his elbow?

MS. BARKENBUS: Yes, ma’am.

BY MS. BARKENBUS:

Q That pipe was about 20 feet long that fell on you--

A Right.

Q --at your work comp accident?

A Right.

Q And that pipe weighed 100 pounds; right?

A Maybe not that heavy, it was plastic. You know, maybe pretty close. I’m not

sure, I don’t know exact weights on every pipe. I really don’t know.

Q Can I ask you to look at this? That’s the complaint that you filed in your

worker’s compensation lawsuit, isn’t it?

A I believe so, yes.

Q And can you read Paragraph 5 for me?

A Actually I can’t, because I don’t have my glasses on. Could you read that for

me?

. . . . . 

Q While unloading pipe at a job site, comma, the plaintiff was injured when a

large piece of pipe approximately 12 inches by 20 feet and about 100 pounds

fell and struck him on the back of the neck and right shoulder junction.

Would you argue if I said that’s what it says?
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A No, that’s what it says.

Q And in that complaint you said that you had suffered pain and injury as a

result of that accident; right?

A Yes.

Q And isn’t it true that you also said that your surgery had been caused by that

accident?

A My surgery was caused by that accident?

Q By your worker’s compensation accident?

A No, I don’t believe so.

. . . . .

Q It says, As a direct and approximate result of the accident the plaintiff had to

undergo surgery and is still recovering at this time.

A Hmm.

Q That is the complaint that you filed in Davidson County Circuit Court, isn’t

it?

A I believe so.

Q For your worker’s compensation accident?

A Yes.

. . . . . 

Q Mr. Pellicano, as a result of this worker’s compensation accident you were

wearing a neck brace, weren’t you?

A Yes.

Q And you wore that all the time when you worked; is that correct?

A Yes.

Q And in fact you were wearing that neck brace on the day that you had the

ambulance accident; right?

A Yes. Well, no, I didn’t have it on at the time. I took it off to go home.

Q But you had been wearing it that day?

A Yes.

Q And where did that neck brace go?

A It’s in my room right now.

Q Where did it fit on your body?

A Right around here [indicating].

Q And after the ambulance accident you continued to wear that neck brace; is

that correct?

A I’m sorry?

Q After the ambulance accident you continued to wear that neck brace; correct?

A No, not--well, in a way, yes, I did; in another way, no, I did not.
Sutton is a workers’ compensation case; nevertheless, the evidentiary issues presented are applicable to this 4

action.

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Generally, a lay witness should testify about facts observed, not about the witness’s opinions

or inferences. Neil P. Cohen, et al., Tennessee Law of Evidence, § 7.01[4][a], (4th ed. 2000 & Supp.

2003). “Lay testimony is competent to establish such simple but important matters as existence of

pain, its location, inability to work, etc. but it may not be received and relied upon to prove matters

requiring scientific knowledge.” American Enka Corp. v. Sutton, 391 S.W. 2d 643, 648 (Tenn.

1965). Causation should be established by medical experts in all but simple and routine cases– and

even then expert testimony is highly desirable. Id. at 647 (citing 2 Larson, Workmen’s Compensation

Law (1961)).

An example of a “simple” injury that would allow testimony by a layperson as to causation

is found in Varner v. Perryman, an auto accident case. In Varner, the court considered whether

plaintiff’s testimony, that he received a bruised stomach muscle as a result of the accident, was

sufficient to establish causation. The court found that the existence of a bruise would be the kind of

“simple” injury that would allow a layperson to testify as to causation. Varner v. Perryman, 969

S.W. 2d 410, 412 (Tenn. Ct. App. 1997) (citing American Enka Corp. v. Sutton, 391 S.W. 2d 643

(1965)). Our Supreme Court addressed the important differences between simple injuries, for which

lay persons are permitted to opine, and more complex medical issues, for which only experts are

permitted to opine, in American Enka Corp. v. Sutton, 391 S.W.2d 643, 646 - 648 (Tenn.1965). The 4

issue the court was dealing with in Sutton was whether the injured lay person could provide

competent proof as to causation of a nerve injury to his eye which he claimed to have resulted from

a chemical accident. The court stated:

It must be remembered that we are dealing with delicate mechanisms of the eye,

including the optic nerve and to make an award in this case based upon conclusions

unsupported by scientific knowledge is not sufficient to meet the requirement that

there shall be material evidence to support the award. 

Petitioner cites the case of Fidelity & Cas. Co. of New York v. Treadwell, 212 Tenn.

1, 367 S.W.2d 470 (1963), quoting a statement therein that: ‘* * * the testimony of

an injured person as to the extent of his injuries may be believed in preference to the

opinions of 'a whole college of physicians' testifying to the contrary.’ 212 Tenn. at

9, 367 S.W.2d at 474. 

This may be true as to the extent of injuries, but it does not apply to causal

connection between an accident and resultant injury. In the case sub judice there is

no argument as to the extent of injury, but rather as to the causal connection. 

. . . . . 
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In the recent case of Magnavox Company of Tenn. v. Shepherd, 214 Tenn. 321, 379

S.W.2d 791 (1964), we reversed the action of the trial court in granting an increase

to an award previously made because there was no competent proof of causal

connection between the original injury and the alleged increased disability. In the

Shepherd case the employee and her husband testified that her increased disability

was due solely to her original injury. An expert medical doctor testified there was no

causal connection between the original injury and the increased disability. We held

therein and now reaffirm that:

Lay testimony is competent to establish such simple but important

matters as existence of pain, its location, inability to work, etc., but

it may not be received and relied on to prove matters requiring

scientific knowledge.

The only competent evidence based upon scientific knowledge offered in this case

is against the award.

American Enka Corp. v. Sutton, 391 S.W.2d 643, 646 - 648 (Tenn.1965).

The testimony of Pellicano and his brother is the only testimony, other than Dr. Guillermin’s

equivocal opinion, concerning whether Pellicano’s need for surgery was caused by the incident with

the ambulance. Pellicano and his brother are lay witnesses. It is well established that Tenn. R. Evid.

701 does not authorize lay testimony on subjects that require special skill or knowledge outside the

realm of common experience. Tennessee Law of Evidence at § 7.01[4][b]. “In situations where a

witness ‘cannot readily and with equal accuracy and adequacy’ testify without an opinion, the

witness may state opinions requiring no expertise.” Tenn. R. Evid. 701, Advisory Commission

Comment. (emphasis added) While their lay testimony is competent to establish that Pellicano

incurred pain following the incident and that he had pain and numbness in his arms weeks later, their

lay testimony is insufficient to establish a cause in fact relationship between the incident and the

need for a diskectomy. 

Based upon the judgment, it is obvious that the court found Pellicano’s testimony, along with

that of his brother, sufficiently credible and competent to establish that Pellicano had essentially

recovered from his prior injury, with the exception of some pain and discomfort, that all of his

subsequent problems were the result of the exacerbation of the pre-existing injury and, therefore, the

damages should be assessed against Defendant and not apportioned. Since Dr. Guillermin gave no

opinion as to causation (maybe yes; maybe no), it is also obvious that the trial court found

Pellicano’s testimony, along with that of his brother,sufficiently credible and competent to establish

that the incident was the cause in fact of the surgery and that all of Pellicano’s medical expenses,

pain and suffering and lost wages were attributable to the incident with the ambulance.
It could not be based upon the expert testimony of Dr. Guillermin for he did not give an opinion as to

5

causation. 

Due to Defendant conceding that it is liable for $1,277.20 of Pellicano’s medical expenses, we have not

6

considered whether the causation evidence concerning these medical expenses is sufficient.

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The evidence does not preponderate against the trial court’s finding that the incident

exacerbated the pre-existing injury; however, we respectfully disagree with the trial court’s finding

that the incident was the cause in fact of the need for surgery. The only basis upon which the trial

court could have reached that conclusion would be the lay testimony of Pellicano and his brother.5

In our opinion, the evidence preponderates against the trial court’s finding of a cause in fact

relationship between the incident and the need for surgery for a number of reasons. Pellicano failed

to provide a convincing explanation why he attributed the need for surgery to the worker’s

compensation accident and thereafter to the incident with the ambulance in the absence of competent

expert proof, which undermined his credibility. Moreover, the lay testimony as to causation is in

conflict with Taylorfor it, in essence, constituted an opinion that the surgery was necessitated by the

incident. Pellicano and his brother’s lay opinion testimony does not qualify for the “simple

assessment of medical causation” exception in Taylor. Such opinion testimony requires scientific

knowledge which Pellicano and his brother do not possess. Accordingly, we hold that the lay

opinion testimony as to the cause in fact for the surgery was not competent and therefore was

insufficient to cure the deficiencies of the equivocal medical proof offered by Dr. Guillermin. 

Therefore we find that Pellicano provided sufficient competent proof to establish that the

incident with Defendant’s ambulance exacerbated his pre-existing neck injury to some degree;

however, the evidence preponderates against the trial court’s finding that the incident was the cause

in fact of the need for surgery. Thus, the proof was insufficient to hold Defendant liable for all of

the expense of the surgery and any damages attributable thereto. 

Consequently, we reverse the trial court’s holding that the incident with Defendant’s

ambulance was the cause in fact of Pellicano’s need for surgery. Due to our finding that the incident

was not proven to be the cause in fact for the surgery, we also vacate the trial court’s award of

damages for medical expenses, pain and suffering and lost wages attributable to the surgery.

Nevertheless, in that Defendant conceded that Pellicano is entitled to recover his medical expenses

for conservative care administered by Dr. Guillermin prior to the surgeryin the amount of $1,277.20,

we therefore modify and reduce the award for medical expenses to $1,277.20. 

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In that the proof sufficiently established that the incident exacerbated the pre-existing neck

injury, particularly the pain and suffering associated with the exacerbation of the neck injury, this

matter is remanded to the trial court for determination of the plaintiff’s claim for pain and suffering

to the extent it was exacerbated by the incident. 
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Therefore, this matter is remanded to the trial court for appropriate proceedings consistent

with this opinion. 

Costs are taxed to Appellee, Dominic P. Pellicano.

___________________________________ 

FRANK G. CLEMENT, JR., JUDGE