              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. R ILEY A NDERSON, S P. J., delivered the opinion of the Court, in which S HARON G. L EE, J.,
and D ONALD P. H ARRIS, S R. 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



                                              -2-
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.




                                             -3-
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



                                               -4-
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



                                             -5-
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.1 Barnett v. Milan Seating Sys., 215 S.W.3d 828
(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.

1
  Because Employee’s injury occurred before July 1, 2009, Tennessee Code Annotated section 50-6-
241(d)(1)(C)(i), which would mandate the opposite result, does not apply to this case.



                                              -6-
                                      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.




                                             -7-
                                        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




                                             -8-
                  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


S HARON G. L EE, J., not participating.
