                  IN THE SUPREME COURT OF TENNESSEE
                 WORKERS' COMPENSATION APPEALS PANEL
                      KNOXVILLE, JUNE 1998 SESSION

                                                                   FILED
                                                                   November 2, 1998

GARY CHARLES HILL                       )     RHEA CHANCERY Cecil Crowson, Jr.
                                        )                          Appe llate Court C lerk
      Plaintiff/Appellee                )
                                        )
V.                                      )     Hon. Jeffrey F. Stewart,
                                        )     Chancellor
INSURANCE COMPANY OF NORTH              )
AMERICA                                 )
                                        )
      Defendant/Appellant               )     No. 03S01-9712-CH-00150




For the Appellant:                            For the Appellee:

F. R. Evans                                   Thomas L. Wyatt
800 First Tenn. Bldg.                         500 Lindsay Street
Chattanooga, Tenn. 37402                      Chattanooga, Tenn. 37402




                       MEMORANDUM              OPINION

                                Members of Panel:

                             William M. Barker, Justice
                            Joe C. Loser, Special Judge
                           Roger E. Thayer, Special Judge




AFFIRMED.                                           THAYER, Special Judge
      This workers' compensation appeal has been referred to the Special Workers'

Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code

Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of

fact and conclusions of law.

      The trial court awarded the employee, Gary Charles Hill, 10% permanent

partial disability to the body as a whole. The insurance carrier, Insurance Company

of North America, has appealed contending the evidence does not support a finding

of permanent disability.

      Employee Hill was 41 years of age at the time of the incident in question and

was a high school graduate. A great deal of his work experience has been as a

painter but he has operated construction equipment and worked as a carpenter. He

had been employed by Raytheon since 1994 and was doing industrial painting on

about February 16, 1995. He testified he was operating a grinder under a large-like

air compressor when he felt a pull in a muscle. When this pain occurred he was

lying down in a somewhat twisted position and was working over his head.

       He reported the incident to his employer and was given a list of three

physicians. He chose Dr. Lester F. Littell and saw him on March 2, 1995. Dr. Littell

told him he had a pinched nerve and would probably need surgery. Hoping to avoid

surgery, he went to see a private physician, Dr. Ernest Forsten. Dr. Forsten

scheduled an M.R.I. examination and later referred him to Dr. Larry Gibson, a

neurologist.

       Plaintiff continued to work with his complaints and was terminated from

employment on August 22, 1995. His employer told him the termination was due to

his “arrest record.” At the trial he told the court the accident caused neck pain and

numbness in some of his fingers and thumb. He said he felt his recovery was about

75% back to normal status but he was still having pain in the back of his shoulder

and down his left arm. He said he could not return to industrial painting work but he

had worked at small painting jobs such as painting bedrooms, porches, fences, etc.

       All of the expert medical testimony was presented by deposition.

       Dr. Larry Gibson testified plaintiff had damage or a pinching of his 6th and 7th

nerve with subsequent weakness in the left triceps. He stated a nerve conduction

study confirmed the diagnosis. Testing also revealed a bulging disc which was due

                                           2
to the aging process. He opined the nerves were pinched while he was working in

the awkward position. He gave a 15% medical impairment and imposed work

restrictions of not working over his shoulders. He also said he should not lift over 20-

25 pounds. He was of the opinion that surgery would not improve his condition.

       Dr. Lester F. Littell, an orthopedic surgeon, saw plaintiff on several visits and

would be classified as the treating physician. His diagnosis was cervical nerve pain

but was of the opinion there was no impairment. He noted the M.R.I. results

indicated a bulging disc which was due to age changes but he did restrict his work

activities so he would not do overhead work.

       Dr. Hytham A. Kadrie, a neurologist, examined plaintiff at the request of a Dr.

Louis Carter (who did not testify). He performed a nerve conduction study, etc. and

was of the opinion there was no nerve damage. Thus, he did not find any medical

impairment.

       Our review of the case is de novo accompanied by a presumption of the

correctness of the findings of fact unless the preponderance of the evidence is

otherwise. T.C.A. § 50-6-225(e)(2).

       If there is conflicting medical testimony on causation of any injury, the trial

judge has discretion to conclude that the opinion of a particular expert should be

accepted over that of another expert and that one expert’s testimony contains a

more probable explanation than another expert’s testimony. Thomas v. Aetna Life &

Cas. Co., 812 S.W.2d 278 (Tenn. 1991).

       The trial court was confronted with conflicting medical opinions regarding

plaintiff’s condition and accepted the opinion of Dr. Gibson as opposed to the other

evidence in the case. In weighing the evidence, the court noted that Dr. Littell did

not document his observations as carefully as Dr. Gibson.

       From our independent examination of the record, we cannot conclude the

evidence preponderates against the findings of the trial court. Therefore, the

judgment is affirmed with costs of the appeal taxed to defendant insurance company.



                                           ___________________________________
                                           Roger E. Thayer, Special Judge




                                            3
CONCUR:



________________________________
William M. Barker, Justice



________________________________
Joe C. Loser, Special Judge




                                   4
                            IN THE SUPREME COURT OF TENNESSEE

                                                      AT KNOXVILLE




GARY CHARLES HILL,                                                            ) RHEA CHANCERY
                                                                              ) No. 8451
          Plaintiff-Appellee,                                                 )
                                                                              )
                                                                              ) No. 03S01-9712-CH-00150
v.                                                                            )
                                                                              )
                                                                              ) Hon. Jeffrey F. Stewart,
INSURANCE COMPANY OF NORTH                                                    ) Chancellor
AMERICA                                                                       )
                                                                              )
          Defendant-Appellant.                                                )


                                                          JUDGMENT ORDER


          T h i s       c a s e     i s       b e f o r e         t h e     C o u r t     u p o n       t h e       e n t i r e
r e c o r d , i n c l u d i n g           t h e       o r d e r       o f     r e f e r r a l         t o     t h e
S p e c i a l     W o r k e r s '         C o m p e n s a t i o n             A p p e a l s       P a n e l ,         a n d   t h e
P a n e l ' s     M e m o r a n d u m           O p i n i o n         s e t t i n g       f o r t h         i t s     f i n d i n g s
o f   f a c t     a n d       c o n c l u s i o n s           o f     l a w ,     w h i c h       a r e       i n c o r p o r a t e d
h e r e i n     b y     r e f e r e n c e ;
          W h e r e u p o n ,           i t     a p p e a r s         t o     t h e     C o u r t       t h a t       t h e
m e m o r a n d u m         O p i n i o n       o f     t h e       P a n e l     s h o u l d         b e     a c c e p t e d       a n d
a p p r o v e d ;       a n d
          I t     i s ,       t h e r e f o r e ,         o r d e r e d         t h a t       t h e     P a n e l ' s
f i n d i n g s       o f     f a c t s       a n d     c o n c l u s i o n s           o f     l a w       a r e
a d o p t e d     a n d       a f f i r m e d ,         a n d       t h e     d e c i s i o n         o f     t h e     P a n e l     i s
m a d e   t h e       J u d g m e n t         o f     t h e       C o u r t .
          C o s t s         o n   a p p e a l         a r e       t a x e d     d e f e n d a n t / a p p e l l a n t ,
I n s u r a n c e       C o m p a n y         o f     N o r t h       A m e r i c a       a n d       F .     R .     E v a n s ,
S u r e t y , f o r         w h i c h     e x e c u t i o n           m a y     i s s u e       i f     n e c e s s a r y .


1 1 / 0 2 / 9 8




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