# FILED Dec. 2, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) JOHN BROWN, ) Shelby County Circuit Court ) No. 45356 T.D. Plaintiff

/Appella nt. ) ) VS. ) C. A. No. 02A01-9512-CV-00284 ) COUNTY OF SHELBY, ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable I rving M. St rauch, Judg e by Designation
Alan Bryant Chambers , Jeff A. Crow, Jr. CHAMBERS, CROW, DURHAM & HOLTON, Memphis, Tennessee Attorney for Plain tiff/App ellant.

Carroll C. Johnson , Memphis, Tennessee Attorney for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
HIGHERS, J. : (Concur s) LILLARD, J. : (Concur s)This appeal concerns an action by the appellant, John Brown (Brown), to recover

worker s’ compensation benefits from his employer , the appellee, County of Shelby (County), who has not elec ted to com

e within the provisi ons of the Workers’ Compensation Law. Brown a lleges that he sustained on-the-job injuries while employe d by the County as a counselor at the Shelby County Jail. The r

ecord r eflectsthat the County

has implemented its own poli cy whereb y it compensates its employ

ees for on-the- job injurie s and rel

ies to some

extent on the Worker s’ Compensation Act as a guide in determining bene fits. At trial, it was esta

blished th at under

said po l ic y, the County

had paid B rown’s te

mporary disability

benefit s and that

Brown so

ught only permanent

disability benefit s and the medical expenses incurred from Dr. John P. Howser. The trial court awarded

a permanent partial disability of 7% to the body as a w

hole and entered a judgment for Brown in

the amoun

t of $5,863 .68. No aw ard wasma de for D r. Howser’s expenses. Brown appeals , identify

ing the i ssues for

review a s follows:

1. Whether th

e Court fixed the per

centag e of disa

bility to pr op er ly c om pe ns at e for vo ca ti on al di sa bi li ty. 2. Wh et he r t he Co ur t p ro pe rl y fi xe d t he an at om ic al di sa bi li ty. 3. Whether

the Court erred in declining [to] award a medical bill.

For rea sons here

inafter expresse d, we af

firm.

Brownwas 52 yea

rs old at the time of

trial. In 1986, he was employ ed with the Shelby County

Sheriff’s Department as a de p uty jailer. He became a counselor in 1987. He workeda daily shi ft of 8 to 12 ho urs. His duties were “to work with the inmates[,] to handle the inmates’ problemsrelating to court in

formatio n, family

problems , . . . to try

to deal wi

th that inma

te in terms of his periodof stay within the [jail].” He normally visited the inmates on the floors where they were housed, “going fr

om pod to pod.” A one-on-oneconfer ence with an inma

te occur red in Brown’s office

only if an inma

te had a p roblem tha

t should not be addr essed be

fore the total jail population.

At

issue here are two separate incide nts from which Brown alleges to have sustained work-related

injury , necess itati ng perman ent disab ility benefit s. The pr

oof showsthat the f

irstoccurred

on November 8, 1988 when Brown fell throug h a ceiling onto a con

crete f loor 10 to 12 feet below, after

discovering evidence of contra band at the jail. Brown testified that he endured injuries to his l eg, including

a “crus hed” an

kle, and b ack. The

second in

cident oc curred

on April 16, 1991 when Brown slipped and fell on some soup while at work.

After the 1988 incident, Brown returned to work in September 1990. Acc ording t

o Brown, his return was with the restrictions that he work only four hours per day

and that the inmates be brought to his office for counsel ing. Brown stated that the restrictions, however, wer e never enforced and t hat his dut ies rema ined the s ame. He

said that h

e was never medi cally

releas ed to return to full duty. Brown wa s also off from work from August 1992 to April 1993. He states that he wa s “ as ke d t o r et ir e” in 19 93 an d d id so in Ju ly.

Brown’s medical history includes a back in jury (ruptur ed disc) from an a

utomobile accident in April 1969, for which he underwent surgery two years la

ter. He returned

to work in 1972 and was employe d at vari ous occu pations, m

ostly counseling positi ons, until th e 19 88 i nci den t. In 1987, Brown was treated by Dr. Howser for 2 to 3 m on ths for a “flare-up” in his back. Br own testified that he was experiencing no back problems from last see ing Howser

in 1987 unti l the 1988 episode.

Brownhas a ba chelor’s degree in business educa tion and attended classes for an additional year a

nd a half working toward obtaining a ma ster’s degree in theology
. He has been a ministerwith the Methodist Church since 1972 and at the time of trial was a “supply minister” (substitut e pastor ) at a

church. Brown id

entified his main “v ocation”as that of minister a

nd his “avoca tion” as th at of cou

nselor wi th the she riff’s d epartme nt.

He describ ed his pre sent phy sical ail ments as “ severe

proble m s with [his] ankle or

. . . le g an d likewise

with [h is] back.” He state d that he is not able to work as a counselor today because he does “ not h ave the same phy sical sta mina that [he] had pri or to 1988. . . . [He ca nnot] stand over a

great deal of . . . time. [He

has] a proble

m sitting . . . . a ver

y se rious pro blem, with

pain . . . .” He continued, “I c an’t physically do anything . . . . I

am crippled.”Pam Savag e, an emp loy ee with the County’s Risk Management Department which handles on-the-

job injury

claims, te stifie d rega rding th e County ’s policy

of compe

nsating its employeesinjured on-the-job. She stated that under such policy, p ermane

nt disability

is negotiated “based upon the workers’ compensation guidelines.” Savag e said the County paid all of Brown’s medical bills with th

e excepti on of Dr . Howser, for which the County denies responsiblity. She explained that the County never appr oved such care and Brown wa s informed that the treatment was not authorized.

Deb orah Denny , an emplo ye e of the Sh elby County Sheriff ’s Depa rtment, Jai l Division, stated that Brown was under her supervision upon returning to work after the 19 88 in ju ry. She said that Brown initially worked an 8 hour shift until she wa s info rmed by his reha bilitation nurse, in December 1990, that he was limited to a four hour wor k schedule. Ac co rd in g t o D en ny, Brown’s schedule was adjusted accordingly and the inmates he counseled were routed to his office. Denny said that although it had been a rranged so that Brown never had to go into the pods, she “chided” him at one point for doing so and expressed her concern reg arding his “excessive walking.”

Medical expert testimony was given, by depositio n, from three phy sicians who treated Brownfor

the injuries at issue. Dr. Thomas Russell first saw Brown at the hospital emerg ency room for the November

1988 injur

ies. Russe

ll said tha t Brown’ s “main

problem”was a “d

eformity of his leg” which x-rays indicated w as a c omminuted fracture just above the ankle and a broken f ibula. Russell perfor med tw o surge ries o n the l eg: the first on th e day foll owing the accident and the second, a corrective osteotomy , in February 1990. Russell consulted with Dr. Ge orge Wood regarding Brown’s complaint

of back pain. He said that Dr. Woods’ concluded that Brown’ s back pain was “an exacerbation of a preexisting condition” and that he sustained no new impairme nt to his b ack. Russel l said that Brown r eached maximum medic al improve ment reg arding

his leg i n November

1991. He assessed a permanent physical impairment

of 8% to the leg and recommended that Brown f orgo oc cupat ions requi ring a ny t yp e climbing or squatting, but believed sedentary occupation “would be satisfactory .”

Dr. Riley Jones testified that he first began treating B rown for back and leg injuriesin September 1989 after the County requested an independent medical examination. The initia l examination revea led no recurr ent ruptu red disc . Jones’ dia

gnosis w as a post- laminect omy syndrome exacerbated by

the fall and psycholog

ical overlay . Jones believed the “exacerbation” was
a “sprained” back as a result of the fall through the ceiling, but that “some of the other thing s that [Brown] was comp laining about . . . didn ’t all go togethe r.” He s tated tha

t Brown “ actively part icipa te[d]”in the examination, which he defi ned as “ove rdoing a ll of his exa

m” or “ba sically acting.” The results of a

differential spinal test were “non-phy siologic,” indicating that the pain he was complaining of was “not coming from his bac k.” Subsequent examinations revealed positive “Waddel’s,” or sy

mptom mag nificati on signs. This result, according to Jones, “runs up red flags.” In September 1990, Jones recommended a reduction in Brown’s wor k schedule to 4 hours pe r d ay.

On April 23, 1991, Jones saw Brown for pain in his right leg and hip. Tests revealed
a new inju ry, an acute radiculopathy or nerve irritation, which Jones attributed to the April 1991 incident
. Jones testified that Brown reac hed maximu m medical improvement on September 17, 1991. He assessed a permanent-partial impairment to the lower extremity (for the loss of motion to the ankle) of 15% and a 5% impairment to the body as a whole for

the radiculopa thy. Jones recommended sedentary

work.

Jones further testified:
Q.
. . . insofar as the S1 radiculopathy , the 5 percent permanent partial impairment, how do you make t he distinctio n betwee

n April [16], 1991, . . . as opposed to the fall of 1988? A. Becau se he didn’t have the S1 radiculopathy on numerous [EMGs] before.

. . . . A.
. . . . So you

have . . . a date of a

new injury. He ha s scar, . .

. . He twisted and stretched and what he didwas pulled the scar that was around the S1 nerve ro ot.

. . . he had another

EMG when

I saw him in August of 1992

. . . . He still had his S1 radicul opathy . So for the period of time from Aprilto August, it was still there. And so we have to assume at that point there’s no change in the poten tials, that it’s going to be chronic . And that ’s why

he was given a 5 pe

rcent.

. . . . Q.
. . . isn’t it true that Mr. Browncomplai ned of pa in almostconsiste ntly for three or, . . . four y

ears fo ll owing this fall b ack in 1988? A.
. . . . His examination by every one was inconsistent. . . . It’s hard, you know, if we ha

d ever had a

consiste nt exam whe

re we c ould pinpoint something and Lord knows he was wo

rked up, . . . forty differ ent ways. . . . And nobody had found anything

of any consequence with this gentleman. Now, you give

a 5 percent out of

the rating for pain. . . . I ’ve got a cause for his pain after he fell this last time.

. . . . A.
. . . . T he on ly cons istency was he complained of pain. But his exam, . . . was off the wall. There was nothing there that any body would say was phy siologic. . . . He’s ove rdoing i t so much, I can’t say there’s any

thing wrong with him. But now, at least with the stretch injury and the ra diculopathy, I

can say he

do e s have thi s problem. And so we gave him that for the pain that he has from the S1 radiculopathy, . . . .

Jones additiona

lly r elated th at Brow n “moves v ery well whe

n he fee ls th at he’s unobserved

. . . he does have pain . . . but he has got pretty good motion, and he’s ca p able of substantia lly m ore than he is willing to do.” When asked about the pain medication he prescribed throughout

Brown’ s period o f treatm ent, Jones repl

ied, “[t]hisgentle

man had e nough pa in in his leg from his injury to account for a lot of problems.” Jones declared that at no time during his treatment of Brown did he believe any type back sur

gery necessary . After

reviewing Brown’s job description withthe sher

iff’s de partmen t, Jones believed Brown capable of doing this work on an 8 hour per day basis, as of February

1994.

Dr. John Howser began treating Br own for the injuries at issue in July 1992. A back examination revealed a restricted rang e of motion, paravertebral muscle spasms and pain. Howser performed

back surgery

in July 1993 after a my

elogram indicated a defectand possible large lumbar disc. The su rgery reveal ed the defect to be a large spur. A subsequent myelog ram showed that

the defect was gone, indicating “an excellent re sult fromhis surg ery .” Acco rding to Howser, Brown’s back problems and the radiculopathy were caused by

his fall in November 1988. Howser assessed
a permanent impairment

of 10 % to the body as a w hole due to Brown’s back problem and subsequent

surger y. He decla

red that Brown w as “not a

ble to wor k at all” b ecause

of his pain. His conclusion in this respect was based on no objective finding, but on Brown ’s own descriptions of his symptoms and pain.The surgery by Dr. Howse

r resulted i n Dr . Jones assessing an additional 2% permanent

impairment to the body as a whole , in acc ordance wit h the AMA G

uides. Jone s, however , recomm

ended a gainst the surgery

and professed that it did not “accomplish[] anything .” He stated that Brown “still has . . . the very same condition [as] before, . . . .”

The tria l court ru led from t he bench as follo ws:
[T]he plaintiff in this case is a m ale, . . . age 53 ye ars, and he is a slight individual, but the working of a counselor and preac her doesn’t require any

strong work. He can do that kind of work. I r ead the depositions of Dr. Jones, Russell, Howser, and i t seems that after the first disability tha t the do ctors found an impairment

to his leg, and the Court is of the opinion that that impairment is 5% of the body as a whole. Now, the 1991, inc ident, h e slipped and fell and had s ome other disability. Dr. Jones says in that deposition his operation by Dr. Howser gives him a 2% additional permanent disability, and so I ’m of the opinio n that th e plaintiff in this case has a 7% permanent disability to the body

as a whole.

Our review o f this matter is de novo upon the record accompanied by

a presumption of correctness of the trial court’s findings of fa ct, unles s the pre

pondera nce of th e evidence is otherwis e. Rule 13 (d) T.R.A .P. In the ty pical wor kers’ compensation case, the permanence of an injury must be established by expert medical tes t imony. Worthington v. Modine Mfg. Co. , 798 S.W.2d 232, 2 32 (Tenn. 1990). In this respect, the case before us is no different. Her e, the thre e treating physicians are

in agreement

that Brown sustained permanent back and leg injuries as a res ult of the two work related incident s, alth ough the y a ssessed v ary

ing ana tomical imp airment r

atings. Browncontends that the proof require s an incr

ease in t he anato mical disa

bility rating based on his back problems and “persistent report of pain.”

Though the an atomi cal di sabil ity ratin gs by the phy sicians are important, they are not contr olli ng. See Vanatta v. Tomlinson , 774 S.W.2d 921, 924 (Tenn. 1989). Once a perm ane nt anatomic al disability

has been establish ed by compete nt medica l testimony , the tria

l judge i s to consider ot he r f ac to rs wh ic h a re re le va nt to th e w or ke r’ s a bi li ty to earn wag es on the open labor market, such as past work history, job s kills and training, education and the job opportunities forthose with that worker’s particular disability
. Vanatta , 774 S.W.2d at 924.

Br own assert s that app lication o f the for egoing factor s warra

nts a higher disa

bility rating than 7%. Dr. Hows er’s tes timony indicate s Brown e

ndures e xcruciating pain , render

ing him unable to do any work. The testimonies of Drs. Russell and Jones are to the contrary . Clearly, the trial judge accepted the

testim onie s of th

e lat ter a s Bro wn wa s dete

rmined par

tiall y d isabl ed. We find that there is evidence in this record from which to conclude that Brown is capable of sedentary type employment. He is 52

yearsold and well educated. He has held various employ ment positions during his adult y

ears, mo st in the area of counseling. Although he no longer works for the sheriff’s departm ent, we believe his level of education and past employme

nt history should ass ist inhis ability to find the type work f

or which the record indicates he is capable. It is proper under Tenne ssee law to allow ben

efits on th e basis of a percentage of

the body as a whole

where an injury

is to more than
one member , one of which is scheduled (i.e. leg) and the other which is not scheduled (i.e. back). Kellerman v. Food Lion, Inc. , 929 S.W.2d 333, 336 (Tenn. 1996). When considering the relevant factors espoused in Vanatta , we find a preponder ance of the evidence to support the trial court’s award of a permanent partial disability of 7% to the body as a

whole.

The final issue before us is whether the trial court err ed in failing to award the medical expe nses o f Dr. Ho wser. The Co unty dis putes owing t hese co sts, claim ing t h e unauthorization of the Doctor’s treatment of which Br ow n w as “s pe ci fi ca ll y” informed . The Coun ty also contendsthat the tr

eatment w as unnec essa

ry. Under

the Worker’s Compensation Act, upon which the County relies as a g uide, an e mploy er is required to provide an employee who has sustained a compensable injury with medical treatment that “may be r

easonably r

equired.” Baggett
v. Jay Garment

Co. , 826 S.W.2d 437, 439 (Tenn. 1992); T.C.A. § 50-6-204(a)(1)). Baggett holds th at the burd en is on the employee to show the “necessity a

nd reasonableness” of those charg es incurred for treatment by

providers who are not designated or other wise approved by

the employer. Baggett , 826 S.W.2d at 439. Even w ithout the C o unty’s election to come unde r the Act’s provision s, it is certain

ly r easonab le to conclude

that the County

should only

be liable for the c osts of the medical care received by its employee that is reason able and necessary to address his work related injury.The testimony on this issue is disputed. The two physicians tre ating Brown f or his back problems were Jones, who saw Brown at the County ’s request, and Howser. Their treatment resultedin di ff

er en t d ia gn os es , w it h J on es co nc lu di ng th at ba ck su rg er y w as not necessary and Howser deducing

the contr

ary . When medi cal testimony differs, it is within the trial court’s discretion to determine which expert testimony to acce pt. Kellerman , 929 S.W.2d at 325. In light of its decision, the trial court clearly accepted theopinion of Dr. Jones. After review of the record,
we find no abuse of discretion by the trial court in accepting this testimony . Therefore, as th e medical expenses f

or Dr. Ho wser’s t

reatmen t were not shown ne cessa

ry and reasonabl e, we conclude that the trial court did not err in failing to award these c osts.

It results that the judgment of the trial court is affirmed and this cause remanded for any further proceedings nece ssary and herewith consistent. Costs are taxed to John Brown, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

________________________________ FAR MER , J.

______________________________ HIG HERS, J. (Conc

urs)

______________________________ LI LL ARD, J. (Conc

urs)