               IN THE SUPREME COURT OF TENNESSEE
         SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
                          AT NASHVILLE
                                  November 26, 2007 Session

     REX BROWN v. UNITED PARCEL SERVICE, INC. and LIBERTY
                MUTUAL INSURANCE COMPANY

                   Direct Appeal from the Circuit Court for Maury County
                            No. 10991    Jim T. Hamilton, Judge



                  No. M2007-00343-WC-R3-WC - Mailed - January 29, 2008
                                  Filed - April 1, 2008


This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section
50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The Appellant
suffered a stroke while performing his job as a package car driver for his Employer. The stroke
occurred while he was being trained to take over a new delivery route. The Employee sought
workers’ compensation benefits, alleging that the stroke was precipitated by stress associated with
his job, particularly with the adjustment to the new route. In preparation for trial, the Employer took
discovery depositions of two medical experts identified as potential witnesses by its Employee. The
Employee did not take evidentiary depositions of those witnesses, but sought to introduce their
discovery depositions as evidence at trial. The trial court admitted the depositions into evidence over
the objection of the Employer. The trial court found that the Employee’s stroke was the result of an
occupational disease, precipitated by work-related stress, and awarded permanent total disability
benefits. The Employer has appealed, contending that the trial court erred by admitting the discovery
depositions into evidence, and finding that the Employee’s stroke was a compensable event. We find
that the depositions should not have been admitted into evidence, in accordance with Rule 32.01(3)
of the Tennessee Rules of Civil Procedure. After a review of the record without consideration of the
depositions, we reverse the judgment of the trial court awarding permanent disability benefits for the
stroke and dismiss the portion of the complaint relating to the stroke. The award for an injury to the
Employee’s shoulder is not questioned and that portion of the judgment is affirmed.


Tenn. Code Ann. § 50-6-225(e) (Supp. 2007) Appeal as of Right; Judgment of the Circuit Court
Affirmed in part and Reversed and Dismissed in part.


JERRY SCOTT , SR. J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., J., and
ALLEN W. WALLACE , SR. J., joined.
David T. Hooper, Nashville, Tennessee, for the Appellants, United Parcel Service and Liberty
Mutual Insurance Company

Robert J. Martin, Clarksville, Tennessee, for the Appellee, Rex Brown

                                              OPINION

                               Factual and Procedural Background

        The Employee, Rex Brown, was a package car driver for United Parcel Service (UPS). He
suffered a compensable shoulder injury in October 1997. That injury was included in this lawsuit,
but is not at issue on appeal. Shortly after the shoulder injury occurred, Mr. Brown suffered a stroke
while at home. He did not seek benefits for that stroke in this lawsuit, but did assert at trial that it
was caused by employment-related stress. Another stroke in 2000 is the subject of this lawsuit.

         Mr. Brown began working for UPS in 1979. He worked out of the Columbia hub for most
of that time and drove the same route for eighteen years. In early 2000, Mr. Brown chose to move
to another route, although he had sufficient seniority to retain his former route. He was placed on
what is referred to as a “training route.” Based upon his observations, he believed that the new route
would require somewhat less time and effort to complete each day’s work.

        Mr. Brown began work on his new route on March 27, 2000. On that day, and the next two
days, he was accompanied by his supervisor, Terry Holder. That was the normal practice for UPS,
and was for the purpose of assisting its employees to learn the details of their newly assigned routes.
While on duty two days later, Mr. Brown began to suffer symptoms of a stroke. He called his wife,
who picked him up and took him to his doctor, who sent him to the hospital. He was diagnosed as
having suffered another stroke. He has not worked since that time. The second stroke is the event
at issue on appeal.

        Mr. Brown testified that he was under a great deal of stress at work. He had conflicts with
management for at least a year, and as a result, had filed three grievances in May and June, 1999.
He apparently believed, though it is not clear that his belief had any basis, that changes might be
made to his route. That possibility was one of the reasons he opted for the training route. Although
he chose that route because he believed it would be easier, by his third day working with Mr. Holder,
he became concerned that he might not be able to handle the route alone. Both his testimony and the
medical evidence indicated that work stress could have been considered a contributing factor to his
1997 stroke. A co-worker testified that the day-to-day work of a UPS delivery driver was very
stressful. In his testimony, Mr. Holder agreed with the co-worker.

        According the testimony of Mr. Brown and Mr. Holder, the day on which the stroke occurred
and the two preceding days were normal workdays. Mr. Brown referred to the day of the stroke as
“just an average day.” The work was no more physically demanding or stressful than usual. There
were no unusual occurrences. Mr. Brown and Mr. Holder had known each other for years, and were


                                                  -2-
on good terms. There was no confrontation or acrimony between them. At the time Mr. Brown
began experiencing the symptoms of his stroke, he was riding in the jumpseat of the delivery truck,
and Mr. Holder was driving.

         Dr. Louise Dobbs Younger Ledbetter, a neurologist, was Mr. Brown’s treating physician for
both the 1997 and 2000 strokes. She testified that he had a number of risk factors for stroke,
including a history of smoking, a family history of hypertension and heart disease, a previous
diagnosis of hypertension, and a genetic predisposition for blood clots, called “Factor V.” She
testified that Mr. Brown suffered a stroke on March 29, 2000. She opined that the event was work-
related in that Mr. Brown’s “hypertension was exacerbated by stress at work, which is a well-known
precipitant of strokes and vascular disease.” She was not aware of any acute stressful event which
precipitated the stroke, but testified that she believed “that over a long period of time he had been
under abnormal stress, trying to keep up with activities that he was physically unable to perform.”

        There is no indication in Dr. Ledbetter’s testimony, or any of the other medical evidence, that
the March 29, 2000 stroke was caused by any act or acts of physical exertion. She assigned a total
anatomical impairment rating of 23% to the body as a whole due to the stroke. She did not believe
Mr. Brown was capable of working due to the factors which precipitated the stroke and the damage
it caused.

        Dr. Garrison Strickland, also a neurologist, conducted an independent medical evaluation
(IME) at the request of UPS. He testified that it was possible that the March 29 event had not been
a stroke, but rather a trans ischemia attack (TIA), a less serious cardiovascular event. This was based
upon his review of CT scans taken before and after March 29, 2000. He also opined that the TIA
was caused by several pre-disposing factors in Mr. Brown’s anatomy. He did not believe the TIA
was precipitated by work stress because Mr. Brown was being assisted by another person at the time
the stroke occurred, and therefore, he would have been under somewhat less stress than usual. He
also stated that “[o]ther than some extreme event like an altercation, I would not consider just a
stress of everyday living to be a major contributor [to causing a stroke] for most people.”

        Dr. Albert S. Callahan, III, another neurologist, also conducted an IME of Mr. Brown,
apparently at the request of his attorney. His discovery deposition was taken by counsel for UPS.
In a written report, Dr. Callahan expressed the opinion that it was “more likely than not that stress
played a role in the occurrence of the stroke in March 2000.” During his discovery deposition, he
stated that this was based in part upon Mr. Brown’s statement that the stroke “was preceded by an
especial intense period of work.” He agreed with Dr. Ledbetter that Mr. Brown was unable to work.

       Dr. James Kelley was Mr. Brown’s primary care physician. His discovery deposition was
taken by counsel for UPS. Dr. Kelley opined that the March 2000 stroke was related to stress in the
workplace, and that Mr. Brown was totally disabled.

        Mr. Brown offered the discovery depositions of Dr. Callahan and Dr. Kelley as evidence at
trial. Prior to the trial, UPS filed a motion in limine to exclude the depositions, based upon the


                                                 -3-
authority of Tennessee Rule of Civil Procedure 32.01(3). At trial, counsel for UPS again objected
to the admission of the depositions on the same basis. The trial court denied the motion, overruled
the objection, and admitted the depositions as evidence.

        On the date of trial, Mr. Brown was fifty-eight years old. He was a high school graduate.
He had worked for UPS, primarily as a package car driver, from 1979 until 2000. His prior work
history is not revealed in the record. He had not worked, or attempted to work, since March 29,
2000.

        The trial court awarded 12.5% permanent partial disability to the body as a whole due to the
shoulder injury. That award is not at issue on appeal. The trial court also awarded a total of 400
weeks disability benefits, for 100% permanent total disability to the body as a whole, as a result of
the stroke.

                                         Issues Presented

       UPS presented six issues on appeal:

       (1) Did the trial court err by admitting and then relying on the discovery depositions of Dr.
           Alfred S. Callahan and Dr. James B. Kelley, the two medical experts deposed by UPS,
           into evidence?

       (2) Did the trial court err in finding that Mr. Brown suffered from an occupational disease?

       (3) Did the trial court err in holding that although extraordianry or unusual stimulus must be
           present for a stroke to be compensable for an accident, it need not be the case in the event
           of an occupational disease?

       (4) Did the trial court err in finding that the stress from Mr. Brown’s work was sufficient to
           determine that his stroke arose out of his employment?

       (5) Did the trial court err in applying to these facts the finding that normal activities can
           trigger preexisting conditions in a non-physical exertion stroke case, rendering them
           compensable?

       (6) Did the trial court err in its award of certain discretionary costs?


                                       Standard of Review

       We review issues of fact de novo upon the record of the trial court accompanied by a
presumption of correctness of the findings, unless the preponderance of the evidence is otherwise.
Tenn. Code Ann. § 50-6-225(e)(2) (Supp. 2007). When credibility and weight to be given testimony


                                                 -4-
are involved, considerable deference is given the trial judge when he or she had the opportunity to
observe the witness’ demeanor and to hear in-court testimony. Humphrey v. David Witherspoon,
Inc., 734 S.W.2d 315, 315 (Tenn. 1987). However, an appellate court may draw its own conclusions
about the weight and credibility to be given to expert testimony when all of the expert proof is by
deposition. Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997). A trial court’s
conclusions of law are reviewed de novo upon the record with no presumption of correctness.
Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

                                                       Analysis

                    Admission of Discovery Depositions of Experts Into Evidence

       As set forth above, counsel for UPS took the discovery depositions of Dr. Callahan and Dr.
Kelley after Mr. Brown identified them as witnesses. The trial court admitted the depositions into
evidence over the objections of UPS.

         Rule 32.01(3) of the Tennessee Rules of Civil Procedure provides:

              The deposition of a witness, whether or not a party, may be used by any party
              for any purpose if the court finds that the witness is "unavailable" as defined
              by Tennessee Rule of Evidence 804(a). But depositions of experts taken
              pursuant to the provisions of Rule 26.02(4) may not be used at the trial except
              to impeach in accordance with the provisions of Rule 32.01(1).

         At the beginning of each deposition, counsel for UPS stated on the record that the deposition
was being taken for discovery purposes because the deponent had been identified by Mr. Brown as
a potential witness.1 Counsel for Mr. Brown questioned each witness after counsel for UPS had
finished his questioning. There is no notice, document, letter, statement on the record or evidence
of any other type that Mr. Brown intended to take evidentiary depositions immediately upon the
conclusion of the discovery depositions or at any other time. Assuming arguendo that Mr. Brown’s
counsel could have initiated an evidentiary deposition spontaneously by making an announcement
to that effect, he did not do so.

         The advisory comment to Rule 32.01(3) of the Tennessee Rules of Civil Procedure states:

              The new sentence . . . at the end of 32.01(3) protects the trial lawyer who


         1
           In its brief on appeal, and at trial, UPS stated that both doctors were identified as expert witnesses. There is
nothing in the record to substantiate this. However, counsel for M r. Brown did not dispute that characterization. Dr.
Kelley was potentially a “hybrid” fact/expert witness, in that he had personal knowledge of M r. Brown’s medical history,
but also offered opinions concerning causation and disability. To the extent that he might be considered a fact witness,
there was no evidence offered to demonstrate that he was unavailable to testify at trial. Therefore the same analysis used
for expert witness testimony is applicable.

                                                           -5-
           takes an opposing expert's discovery deposition by court order or by
           agreement from being confronted with the deposition as substantive proof at
           trial. Tactically the discovering lawyer wants to find out everything the expert
           intends to say at trial and conducts a very open inquiry, expecting many
           unfavorable answers; there is no cross-examination in the trial sense. It would
           be unfair to plaintiffs and defendants alike to have such a deposition admitted
           as former testimony on the ground that the deponent is unavailable, whether
           dead, outside the jurisdiction, or more than one hundred miles from the
           courtroom. If the party who hired the expert wants to take a deposition for
           proof, of course, that can be accomplished by notice or agreement. The
           present amendment applies only to a discovery deposition of the adversary's
           expert.

        The situation presented by this case fits squarely within the language and intent of the rule.
Mr. Brown’s counsel did not explain his failure to take evidentiary depositions. He argues that the
trial court did not err in admitting the discovery depositions because counsel for UPS “could not
have seriously believed that these two physicians would be called live.” He also asserts on appeal
that the trial court could have granted a continuance to allow him to take the depositions. However,
Mr. Brown’s counsel did not request a continuance in the trial court. We conclude that the trial court
erred by admitting and considering the evidence in the discovery depositions.

         Mr. Brown’s counsel also argues that this evidence “played a minor role” in his case,
implying that any error in admitting the depositions was harmless. We do not agree. Mr. Brown
cites testimony from the depositions in his brief in support of his position on causation. Further, in
its memorandum decision, the trial court specifically referred to the opinions of Dr. Callahan and Dr.
Kelley in support of its finding on the issue of causation. UPS contends that the evidence
preponderates against that finding. It is our obligation to review the entire record de novo
concerning that issue. Tenn. Code. Ann. § 50-6-225(e)(2)(Supp. 2007). Because the medical proof
was presented to the trial court by deposition, we are able to reach our own conclusions concerning
the weight of that evidence. Krick, 945 S.W.2d at 712. We have excluded the contents of the
depositions from consideration as we address the issue of causation.


                        Occupational Disease, the Stroke and Causation

       UPS has raised four issues concerning the trial court’s finding regarding occupational
disease, the stroke and its causation. Because the trial court’s decision, and Mr. Brown’s position
on appeal, mix elements of causation related to heart attacks and strokes generally, injuries caused
by mental stimulus, gradual injuries and occupational disease, it is appropriate to consider all of Mr.
Brown’s theories and his employer’s issues on causation together in light of the Tennessee workers’
compensation case law.

       In Bacon v. Sevier County, 808 S.W.2d 46, 49 (Tenn. 1991), the Supreme Court noted that


                                                 -6-
“[a]nalyzed causationally, the heart attack cases may be categorized into two primary groups: those
that are precipitated by physical exertion or strain and those resulting from stress, tension, or some
type of emotional upheaval.” If physical exertion is the alleged cause, “no extraordinary exertion
or unusual physical strain need be established in order to obtain a recovery.” Id. at 50. Normal
physical activity associated with the job, if proven to have precipitated the event, is sufficient to
establish causation. Id. The same analysis is applied in analyzing strokes. See Houser v. Bi-Lo,
Inc., 36 S.W.3d 68, 71 (Tenn. 2001). In this case, there is no contention, nor evidence, that Mr.
Brown’s stroke was caused by any physical activity. His theory, at trial and on appeal, is that his
stroke was precipitated by stress arising from his job.

        “[I]n order to recover when there is no physical exertion, but there is emotional stress, worry,
shock, or tension, the heart attack [or stroke] must be immediately precipitated by a specific acute
or sudden stressful event, rather than generalized employment conditions.” Bacon, 808 S.W.2d at
52. UPS contends that the evidence in this case fails to satisfy that standard because there was no
evidence presented that a sudden event occurred, nor medical evidence that Mr. Brown’s stroke was
precipitated by a specific acute or sudden stressful event.

        Mr. Brown contends that the Bacon standard does not apply in this case because, he is
seeking compensation for an occupational disease, rather than an injury. Id. However, he did not
identify at trial or in his brief the occupational disease for which he is seeking relief. The record
supports the conclusion that he had coronary artery disease, peripheral vascular disease and
hypertension, among other conditions. However, all of the cases which consider strokes and heart
attacks involve pre-existing conditions such as these. An extended discussion and listing of cases
on the subject is contained in Bacon. 808 S.W.2d at 50-52. Moreover, the disability for which Mr.
Brown seeks relief in this action arose from a single event, the stroke which occurred in March
2000, rather than any underlying disease process. In any case, the same standard would apply for
any condition alleged to be the result of a solely mental or emotional stimulus. In Bledsoe v. City
of Dickson-Dept. of Police, No. M2005-00919-WC-R3-CV, 2006 WL 1815808, at *6 (Tenn.
Workers’ Comp. Panel May 25, 2006), the policeman employee sought recovery for disability
resulting from hypertension caused by job stress. His claim was explicitly based upon an
occupational disease theory. Id. The Special Workers’ Compensation Appeals Panel reversed an
award of benefits, applying the standards set forth in Bacon, 808 S.W.2d at 52, and Houser, 36
S.W.3d at 72. Bledsoe, 2006 WL 1815808, at *6. We agree with the prior panels. Whether viewed
as an injury or an occupational disease, the condition at issue here was caused solely by mental or
emotional stimuli. Therefore, the requirements set out in Bacon, 808 S.W.2d at 52, and Houser, 36
S.W.3d at 72, must be satisfied in order for Mr. Brown to recover.

        Alternatively to his occupational disease theory, Mr. Brown contends that the increase in
stress which he felt as a result of his decision to move to a new route was sufficiently sudden, acute
and unusual to satisfy those requirements. Specifically, he submits that he had anticipated the new
route would be easier and require fewer hours to complete. However, after his first two days on the
route, he began to change his mind. He testified that on the first day, he and Mr. Holder finished the
route at 7:00 p.m. On the second day they returned to the terminal at 7:00 p.m. without making all


                                                  -7-
of the scheduled deliveries and pick-ups. Mr. Holder then drove him along the route in his own
automobile. On the third day, the number of deliveries had “piled up” because the route had not
been completed the previous day. That was the last day that Mr. Holder was scheduled to assist Mr.
Brown on the route and Mr. Brown knew he would be on his own the next day. He was increasingly
concerned that he would be unable to complete his deliveries in a timely fashion, and that his job
would therefore be in jeopardy. He testified that he shared those concerns with Mr. Holder at the
time.

        Dr. Ledbetter had treated Mr. Brown for his 1997 stroke and the one at issue in this litigation.
She opined that both were related to, or caused in some part by, stress in the workplace, although the
1997 stroke occurred while Mr. Brown was at home on a weekend. She was questioned at length
about the factors or events that precipitated the March 2000 stroke. She stated:

           Q: You’ve said that this gentleman’s stroke that he had in March of 2000 was
           related to work. In looking at the history that he gave you, it does not appear
           that there is a history that you reported at a time or subsequently that
           suggested any particular event that – on that date of the stroke that caused it.
           Is that a fair enough reading?

           A: Of the March of 2000?

           Q: Yes, ma’am.

           A: I don’t have any way to review all the events that occurred for him at work
           on that date. But I do know that he had expressed great anxiety over his
           feeling that he was being asked to perform tasks that he was physically unable
           to do.
                                               ****
           Q: Okay. Was it a generalized situation of stress for him, as you suggested
           or was it a specific event, an unusual or unique occurrence that caused him
           to have a stroke on that day?

           A: My understanding was that – and this obviously is based on the history
           that I obtained from the patient – was that in general he was being asked to
           perform tasks that he physically couldn’t do. By my understanding is that
           either on that particular day or shortly before he was given additional
           territory.
                                              ****
           Q: Okay. If they were not speaking in an angry fashion but speaking in a
           collegial or friendly fashion, would that tend to suggest he was under
           abnormal stress or under a normal amount of job-type stress?

           A: My impression and my opinion is that over a long period of time he had


                                                  -8-
           been under abnormal stress, trying to keep up with activities that he was
           physically unable to perform for fear of losing his job.
                                              ****
           Q: If he suggested in his testimony that there was no acrimony at all between
           himself and the supervisor on that day or any of the days before when the
           supervisor had been showing him the route and assisting him with offloading
           and loading packages, would that not tend to suggest that there was nothing
           more stressful about that day than other days?

           A: My impression over time was that [Mr. Brown] felt considerable stress
           about pressure that was put on him to perform tasks that he was physically
           unable to do.
                                              ****
           Q: As far as his own interpretation of how he got along with his supervisor
           that day, being friendly and non-acrimonious, would that not tend to suggest
           that there was nothing abnormally stressful on that day?

           A: Whether or not there was a particular point in that day where the stress
           was higher than the already prior stress really doesn’t have any bearing on
           whether or not the stroke was due to stress over a period of time or stress at
           one point in time.

        Dr. Ledbetter’s testimony was consistent with that of Mr. Brown that he had been under
significant stress related to his job since before 1997. UPS conceded as much, putting on its own
proof that the job of a package car driver was very stressful as a matter of course. However, as
quoted above, Dr. Ledbetter was aware that Mr. Brown’s stress level had increased as a result of a
change in his route (although she was under the mistaken impression that additional territory had
been added).

        In Cigna Prop. & Cas. Ins. Co. v. Sneed, 772 S.W.2d 422, 424 (Tenn. 1989), an employee
sought workers’ compensation benefits for depression which she alleged to be the result of her
termination from her employment. The trial court denied the claim. The Supreme Court affirmed,
noting that there was “no sudden angry or heated confrontation” at the time of her termination. Id.
The Court noted that the employee was

            “disappointed and upset that she was not being permitted to return to work,
           but nothing in the nature of an industrial ‘accident’ is shown to have occurred
           [on the date of termination]. Concern over employment terms and conditions
           occurs in all types of occupations and is an inevitable concomitant of any
           contract of employment.”

Id. Similar conclusions have been reached in other cases based upon injuries alleged to result from
actual or anticipated termination. See Chapman v. Aetna Cas. & Surety Co., 221 Tenn. 376, 426


                                                -9-
S.W.2d 760, 762 (1968)(heart attack after notice of termination); Aycock v. Bridgestone (USA), Inc.,
No. 01S01-9406-CV-00061, 1995 WL 328734, *6 (Tenn. Workers’ Comp. Panel May 31,
1995)(psychological injury after performance review).

        More recently, the Supreme Court addressed the compensability of an injury alleged to be
the result of fear of termination in Goodloe v. State, 36 S.W.3d 62, 64 (Tenn. 2001). In Goodloe,
the employee had been told by her supervisor, who was also a friend, that she was in danger of being
fired. Id. Distraught, she took an overdose of anxiety medication while at work. Id. She survived,
and brought a claim for permanent disability benefits under the workers’ compensation act. Id. The
Claims Commission granted the State’s motion for summary judgment. Id. at 65. An appeals panel
reversed the Commissioner’s decision, and remanded the case for trial. Id. The Supreme Court
granted review, reversed the panel and reinstated the judgment in favor of the State. Id. at 67-68.
The Court reiterated the rule requiring an “identifiable stressful, work-related event producing
sudden fright, shock, or excessive unexpected anxiety to justify a recovery.” Id. at 67. The Court
then went on to observe:

           If the employee in this case under these facts was entitled to recover benefits,
           then any employee who becomes anxious or depressed over an adverse
           employment decision or action, such as the possibility of losing a job; a poor
           evaluation; a transfer; a demotion; a layoff; and the like, would be able to
           recover benefits. Hence the rule that generalized fear or worry regarding job
           performance or job security does not rise to the level of a compensable injury.
Id.

        Considered in that context, the facts of this case, even when viewed in the light most
favorable to Mr. Brown, are insufficient as a matter of law to sustain a finding that his March 2000
stroke was a compensable event. Indeed, the facts of this case are quite similar to those in Bacon,
808 S.W.2d at 46, Sexton v. Scott County, 785 S.W.2d 814, 816-17 (Tenn. 1990), and Lane v. City
of Cookeville, No. M2006-00871-SC-WCM-WC, 2007 WL 2284862, *3 (Tenn. Workers’ Comp.
Panel, August 9, 2007). In each of those decisions, claims based upon injuries alleged to have been
caused by stress and anxiety resulting from overwork were held to be non-compensable. Even
when the discovery depositions of Dr. Callahan and Dr. Kelley are considered, the case law of this
state simply does not allow a finding that Mr. Brown’s stroke was a compensable injury or disease.
We conclude, therefore, that the judgment of the trial court must be reversed and the claim for
permanent total disability alleged to have resulted from the stroke must be dismissed.

                                       Discretionary Costs

        UPS argues that several items were awarded as discretionary costs which are not recoverable
under Rule 54.05 of the Tennessee Rules of Civil Procedure. Discretionary costs are awarded “to
the prevailing party unless the court otherwise directs.” Tenn. R. Civ. P 54.04(1). Mr. Brown did
not prevail on his claim for workers compensation benefits for his disability alleged to have resulted
from his stroke. Therefore, the award of discretionary costs is reversed and dismissed.

                                                -10-
                                            Conclusion

        The judgment of the trial court is reversed, and the complaint alleging permanent total
disability due to the stroke is dismissed, as is the claim for discretionary costs. The judgment
awarding 12.5% permanent partial disability to the body as a whole as a result of the injury to his
shoulder is not at issue and therefore, that portion of the judgment is affirmed. Costs of this appeal
are taxed to Mr. Brown and his surety, for which execution may issue if necessary.

                                               ____________________________
                                               JERRY SCOTT, SENIOR JUDGE




                                                -11-
1




    -12-
 2                     IN THE SUPREME COURT OF TENNESSEE

 3                                       AT NASHVILLE

 4            REX BROWN v. UNITED PARCEL SERVICE, INC. ET AL

 5                                Circuit Court for Maury County

 6                                             No. 10991
 7
 8                   No. M2007-00343-SC-WCM-WC - Filed - April 1, 2008
 9
10                                      JUDGMENT ORDER

11            This case is before the Court upon the motion for review filed by Rex Brown

12   pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(B), the entire record, including the order of

13   referral to the Special Workers’ Compensation Appeals Panel, and the Panel’s

14   Memorandum Opinion setting forth its findings of fact and conclusions of law.

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

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

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

18   Court.

19            Costs are assessed to appellant Rex Brown, and his surety, for which execution may

20   issue if necessary.

21            It is so ORDERED.




                                              -13-
22                                        PER CURIAM




23   Koch, J., not participating




                                   -14-
