IN THE SUPREME COURT OF TENNESSEE

SPECIAL WORKERS’ COMPENSATION APPEALS PANEL

AT NASHVILLE

September 19, 2011 Session

LARRY KENNETH HALE v. INSURANCE COMPANY OF THE STATE

OF PENNSYLVANIA ET AL.

Appeal from the Chancery Court for Wilson County

No. 09441 C. K. Smith, Chancellor

No. M2011-00504-WC-R3-WC - Mailed - November 23, 2011

Filed - February 16, 2012

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been

referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of

findings of fact and conclusions of law. The employee fell and struck both knees on a

concrete landing in the course of his employment with the employer. His left knee required

surgery and his right knee received limited medical treatment. The treating physician

assigned 8% permanent impairment to the left leg. Employee’s evaluating physician

assigned 13% impairment to the left leg and 20% impairment to the right leg. The trial court

adopted the evaluating physician’s opinions and awarded 50% permanent partial disability

to both legs. Employer argues on appeal that the trial court erred by finding that Employee

sustained a permanent injury to his right knee, by adopting the impairment rating of Dr.

Landsberg over that of Dr. Gavigan for the left knee injury, by failing to find that Employee

had a meaningful return to work, and by granting an excessive award of benefits. We affirm

the judgment.

Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right; Judgment of the Chancery

Court Affirmed

E. RILEY ANDERSON, SP. J., delivered the opinion of the Court, in which SHARON G. LEE,J.,

and DONALD P. HARRIS, SR. J., joined.

Stephen W. Elliott and Fetlework Balite-Panelo, Nashville, Tennessee, for the appellants,

Insurance Company of the State of Pennsylvania and Vought Aircraft Industries, Inc.

William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Larry

Kenneth Hale.
MEMORANDUM OPINION

Factual and Procedural Background

On April 24, 2009, Larry Hale (“Employee”) tripped over a panel and fell on his

knees on a concrete landing in the course of his employment with Vought Aircraft Industries

Inc. (“Employer”). He reported his injuries and received first aid at the workplace for

abrasions to both knees, which were swollen and painful. His symptoms did not improve,

and he was referred to Dr. Jim L. Scott at Concentra Medical Center for further treatment.

His treatment consisted of medication and physical therapy for both knees, and his work was

modified. However, he continued to experience swelling and pain and limitation of motion

in both knees and a limp. On May 28, 2009, Dr. Scott ordered an MRI, which revealed,

among other things, a tear of the lateral and medial meniscus of the left knee.

On June 10, 2009, Employee was referred to Dr. William Gavigan, an orthopaedic

surgeon, for further evaluation and treatment. Dr. Gavigan examined him and found

effusion, tenderness, and limited motion in the left knee with a mild left side limp. On June

29, 2009, Dr. Gavigan performed arthroscopic surgery to repair the torn cartilage of the left

knee and found a complex tear involving most of the lateral meniscus and a free margin tear

of the medial meniscus. Dr. Gavigan also performed a chondroplasty that constituted

shaving the back of the patella or kneecap.

Dr. Gavigan continued to treat Employee until September 28, 2009, when he released

Employee from his care. He assigned a permanent anatomical impairment of 8% to the left

leg due to the injury and surgery and placed no permanent restrictions on Employee’s

activities. Although the right knee was swollen and tender, Dr. Gavigan did not treat it and

testified that he did not believe treatment was needed during the time Employee was in his

care.

Employee returned to work for Employer in the same position he previously held and

continued to have the same job at the time of the trial in January 2011. On July 1, 2010,

Employer was purchased by another entity, Triumph Aerostructures.

At trial, Employee testified that he was sixty-five years old, attended school through

the tenth grade, and later obtained a GED with some difficulty. He worked for Employer and

its predecessor companies for forty-three years. Employee testified that he had swelling,

pain, limited motion, and “crunching and popping” in both knees, that the physical therapy

ordered by Dr. Scott included both knees and that he continued to have symptoms in both

knees when he saw Dr. Gavigan. He further attested that he asked Dr. Gavigan to provide

treatment to the right knee, but the doctor had declined because “they . . . told him to do the

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left knee only.” On cross examination, Employee agreed that he was performing the same

job and receiving the same pay as before the injury and that a co-employee helped him

perform his job. He confirmed that he had testified during his discovery deposition that he

had not requested medical treatment for his right knee because he did not consider his right

knee problems to be serious enough to require treatment.

Dr. Robert Landsberg, an orthopaedic surgeon, performed an independent medical

examination on Employee on October 26, 2009, and found atrophy in each thigh and flexion

deformity, swelling, tenderness, and crepitus, or crunching and grinding, in both

knees. Using the same section of the American Medical Association Guides to the

Evaluation of Permanent Impairment, Sixth Edition (“AMA Guides”), used by Dr. Gavigan,

Dr. Landsberg assigned an impairment of 13% to the left leg because of the work injury and

later surgery. Dr. Landsberg explained that the “default” rating for a medial meniscus injury

and surgery is 10% to the leg. Dr. Gavigan had modified the rating to 8% because he

“thought [Employee] was doing well.” Dr. Landsberg, on the other hand, increased the

rating up to 13% because Employee “had a limp and some decreased motion.”

It was also Dr. Landsberg’s opinion that Employee had sustained a 20% permanent

impairment of the right leg as a result of the April 2009 fall. He stated that Employee

“mainly had arthritic problems with decreased range of motion” in the right knee and that

“arthritis was advanced in each knee . . . by his work injury.” As permanent restrictions, Dr.

Landsberg recommended “no squatting, no crawling, no kneeling with either knee, minimal

climbing, alternate standing, walking, and occasional sitting if necessary” and further stated

as follows:

[I]f he’s sitting, he should get up and move around every half

hour to one hour or so and move around for a few minutes. If

he’s standing, he should sit every half hour to an hour and the

same thing with walking. He should alternate. He shouldn’t

walk much more than fifteen minutes at a time to twenty

minutes at a time.

The trial court found that Employee injured both knees as a result of the April 2009

fall and sustained a 50% permanent partial disability to both legs. The trial court held that

the one and one-half times impairment cap set out in Tennessee Code Annotated section 50-

6-241(d) did not apply because of the acquisition of Employer by Triumph Aerostructures.

On appeal, Employer contends that the trial court erred by finding that Employee

sustained a permanent injury to his right knee, by adopting the impairment rating of Dr.

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Landsberg over that of Dr. Gavigan for the left knee injury, by failing to find that Employee

had a meaningful return to work, and by granting an excessive award of benefits.

Standard of Review

We review the trial court’s factual findings “de novo upon the record of the trial court,

accompanied by a presumption of the correctness of the finding, unless the preponderance

of the evidence is otherwise.” Tenn. Code Ann. § 50-6-225(e)(2). Following this standard,

we “examine, in depth, a trial court’s factual findings and conclusions.” Crew v. First Source

Furniture Grp., 259 S.W.3d 656, 664 (Tenn. 2008) (quoting Galloway v. Memphis Drum

Serv., 822 S.W.2d 584, 586 (Tenn. 1991)). We accord considerable deference to the trial

court’s findings of fact based upon its assessment of the testimony of witnesses it heard at

trial, although not so with respect to depositions and other documentary evidence. Padilla

v. Twin City Fire Ins. Co., 324 S.W.3d 507, 511 (Tenn. 2010); Glisson v. Mohon Int’l,

Inc./Campbell Ray, 185 S.W.3d 348, 353 (Tenn. 2006). We review conclusions of law de

novo with no presumption of correctness. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn.

2007). Although workers’ compensation law must be liberally construed in favor of an

injured employee, the employee must prove all elements of his or her case by a

preponderance of the evidence. Crew, 259 S.W.3d at 664; Elmore v. Travelers Ins. Co., 824

S.W.2d 541, 543 (Tenn. 1992).

Analysis

Right Knee Injury

Employer contends that the trial court erred by finding that Employee sustained a

permanent injury to the right knee and by adopting Dr. Landsberg’s impairment rating for

Employee’s right knee injury. Employer asserts that the injury to Employee’s right knee was

less serious than that to his left knee. That argument is consistent with the medical records,

which include statements that Employee’s left knee was his primary problem. It is not

disputed that Employee received only limited medical treatment for the right knee. In light

of these considerations, Employer argues that it is illogical to adopt a larger impairment for

the right leg than for the more seriously injured left leg.

Employer relies upon Conger v. U.S. Food Service, Inc., No. W2005-00123-WC-R3-

CV, 2006 WL 1816236 (Tenn. Workers’ Comp. Panel May 1, 2006). In that case, the

employee suffered a back injury and a secondary injury to his bowel as a result of the same

event. Id. at *2. The bowel injury received limited medical attention prior to the testimony

of a primary care physician that a permanent bowel injury had occurred. Id. Unlike the

present case, the employer sought an independent medical evaluation concerning the

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untreated condition, but that application was denied by the trial court. Id. at *4. The Panel

found that the trial court erred by denying that application and reversed. Id., at *6. We find

that Conger has no application to the present case. The only similarity between the two cases

is the presence of a secondary injury which received little or no medical treatment. The legal

issue presented in Conger was entirely different from, and is not relevant to, the issue

presented here.

As a part of the proof in this case, Dr. Landsberg testified that when he examined

Employee on October 26, 2009, he found atrophy in each thigh and flexion deformity,

swelling, tenderness, and crepitus in both knees. He stated that Employee had mainly

arthritic problems with decreased range of motion in the right knee, which had been

advanced by his work injury. As a result, Dr. Landsberg recommended permanent activity

restrictions.

Employee testified at trial that he injured both his right knee and left knee in April

2009, that he received medical treatment for over six weeks, including medication and

physical therapy for both knees, and that his symptoms did not improve. After he was

referred to Dr. Gavigan on June 10, 2009, he requested treatment for the right knee but the

request was denied because Dr. Gavigan had been instructed to treat the left knee

only. There was other evidence in the record that was somewhat inconsistent with that

testimony. The trial court, however, found that Employee was a credible witness and on that

basis concluded that a right knee injury had occurred. We are unable to conclude that the

evidence preponderates against that finding.

Having found that a compensable permanent injury existed, the trial court necessarily

had to determine the anatomical impairment as a prerequisite to fixing permanent

disability. Tenn. Code Ann. § 50-6-241(d). Dr. Landsberg’s testimony was the only

evidence before the court which addressed that issue. In the absence of any other medical

testimony on the subject, we conclude that the evidence does not preponderate against the

trial court’s decision adopting the impairment rating of Dr. Landsberg. See Berry v.

Armstrong Wood Prods., No. W2009-02070-WC-R3-WC, 2011 WL 666138, at *6 (Tenn.

Workers’ Comp. Panel Feb. 16, 2011); Pillers v. Josten’s Printing & Publ’g, No. M2003-

02919-SC-WCM-CV, 2005 WL 995227, at *3 (Tenn. Workers’ Comp. Panel Apr. 29, 2005).

Left Knee Impairment

Employer contends that the trial court erred by adopting Dr. Landsberg’s impairment

rating for Employee’s left knee over that of Dr. Gavigan. Employer argues that, as a treating

physician, Dr. Gavigan observed Employee over a longer period of time and had the

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opportunity to directly view the anatomy of his knee during surgery. Employee responds by

noting that Dr. Landsberg examined Employee last and found atrophy in each thigh and

flexion deformity, swelling, tenderness, and crepitus in both knees.

Dr. Landsberg has been trained and certified as a member of the panel of the

Tennessee Department of Labor and Workforce Development to evaluate worker

impairments using the AMA Guides. Dr. Gavigan did not have this certification. Dr.

Landsberg based his impairment rating on a “Lower Limb Questionnaire” filled out by

Employee, a Functional History Modification, Physical Examination Modification or Clinical

Studies Modification table which are part of the evaluation process described in the AMA

Guides. Dr. Gavigan did not use and was not familiar with the “Lower Limb

Questionnaire.” He either did not use or did not mention in his report or testimony the

history, the physical examination or the physical studies table. The trial judge noted that Dr.

Landsberg seemed more learned about the AMA Guides.

A trial court generally has the discretion to choose which expert to accredit when

there is a conflict of expert opinions. Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335

(Tenn. 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990). In this case,

both doctors testified by deposition, so we are able to reach our own conclusions

concerning the weight to be accorded to each. Padilla, 324 S.W.3d at 511; Glisson, 185

S.W.3d at 353. We have independently reviewed the medical evidence and conclude that it

does not preponderate against the trial court’s finding in this case.

Meaningful Return to Work

Employer argues that the award of permanent disability benefits should have been

limited to one and one-half times the anatomical impairment in accordance with Tennessee

Code Annotated section 50-6-241(d)(1)(A), because Employee returned to work at the same

job after recovering from his injury. The undisputed evidence at trial was that Employer was

acquired by another corporate entity, Triumph Aerostructures, after the date of Employee’s

injury. The Supreme Court and recent workers’ compensation court panels have consistently

held that the lower cap on disability awards does not apply when the pre-injury employer is

purchased by or merged with another entity. Barnett v. Milan Seating Sys., 215 S.W.3d 828

1

(Tenn. 2007); Cook v. Gen. Motors Corp., No. M2010-00272-WC-R3-WC, 2011 WL

590456 (Tenn. Workers’ Comp. Panel Feb. 16, 2011); Day v. Zurich Am. Ins. Co., No.

W2009-01349-WC-R3-WC, 2010 WL 1241779 (Tenn. Workers’ Comp. Panel Mar. 31,

2010). We therefore find this argument to be without merit.

Because Employee’s injury occurred before July 1, 2009, Tennessee Code Annotated section 50-6-

1

241(d)(1)(C)(i), which would mandate the opposite result, does not apply to this case.

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Excessive Award

Finally, Employer argues that the award of 50% permanent partial disability to both

legs is excessive, asserting that Employee is still working at the same job with the same pay

as before the injury and that he has no plans to retire.

In assessing the extent of an employee’s vocational disability, “the trial court shall

consider all pertinent factors, including lay and expert testimony, the employee’s age,

education, skills and training, local job opportunities, capacity to work at the kinds of

employment available in his or her disabled condition.” Tenn. Code Ann. § 50-6-241(2)(A)

(2008); see also Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 (Tenn.1990) (“the

trial court must determine the extent of unscheduled vocational disability by considering

many factors, including job skills, education, age, training, duration of disabilities,

anatomical disabilities established by medical experts, and local job opportunities for the

disabled.”); Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn.1986) (“the

assessment of permanent total disability is based upon numerous factors, including the

employee’s skills and training, education, age, local job opportunities, and his capacity to

work at the kinds of employment available in his [or her] disabled condition.”).

In Corcoran v. Foster Auto GMC, Inc. 746 S.W.2d 452, 458 (Tenn. 1988), our

Supreme Court observed that “[i]n determining vocational disability, the question is not

whether the employee is able to return to the work being performed when injured, but

whether the employee’s earning capacity in the open labor market has been diminished by

the residual impairment caused by a work-related injury.”

Employee testified that he was sixty-five years old at the time of trial, finished the

ninth grade and left school in the tenth grade, and later obtained a GED with some

difficulty. He had worked for a single employer for more than forty years, performing

physical labor and had no specialized training. He testified that he had worked at other jobs

involving physical labor in the past but would be unable to perform them now because of his

physical restrictions. He also testified that he had pain and swelling in both knees and

limited range of motion. He still walked with a limp and was unable to observe the activity

restrictions while at work. Dr. Landsberg recommended significant activity restrictions as

a result of the injury. Considering the record as a whole, we conclude that the evidence does

not preponderate against the trial court’s finding that Employee had a 50% permanent partial

disability to both legs.

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Conclusion

The judgment of the trial court is affirmed. Costs are taxed to Insurance Company of

the State of Pennsylvania and Vought Aircraft Industries, Inc., and their sureties, for which

execution may issue if necessary.

______________________________________

E. RILEY ANDERSON, SPECIAL JUDGE

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IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

LARRY KENNETH HALE v. INSURANCE COMPANY OF THE STATE

OF PENNSYLVANIA ET AL.

Chancery Court for Wilson County

No. 09441

No. M2011-00504-SC-WCM-WC - Filed - February 16, 2012

ORDER

This case is before the Court upon the motion for review filed on behalf of Insurance

Company of the State of Pennsylvania and Vought Aircraft Industries, Inc. pursuant to Tenn.

Code Ann. § 50-6-225(e)(5)(A)(ii), 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.

It appears to the Court that the motion for review is not well-taken and is therefore

denied. The Panel’s findings of fact and conclusions of law, which are incorporated by

reference, are adopted and affirmed. The decision of the Panel is made the judgment of the

Court.

Costs are assessed to Insurance Company of the State of Pennsylvania and Vought

Aircraft Industries, Inc., and their sureties, for which execution may issue if necessary.

PER CURIAM

SHARON G. LEE, J., not participating.