No. M2002-00480-WC-R3-CV.Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel.
Filed May 5, 2003.
Direct Appeal from the Circuit Court for Davidson County; No. 97C-1117; Carol L. Soloman, Judge.
Martin S. Sir, Nashville, Tennessee, for appellant, Muhannad H. Al-Rusheidat.
Hal W. Wilkins, Nashville, Tennessee, for appellee, Domino’s Pizza, Inc.
John K. Byers, Sr. J., delivered the opinion of the court, in which Adolpho A. Birch, Jr., J., and Joe C. Loser, Sp. J., joined.
JOHN K. BYERS, SENIOR JUDGE
The plaintiff brought this action to recover for injuries he alleges he sustained as a result of an automobile accident on April 13, 1996, while in the course of his employment with the defendant. The trial judge found the plaintiff’s complaints of pain and subsequent medical treatment were not caused by the accident. The plaintiff appeals from this judgment. We affirm the judgment of the trial court.
On April 13, 1996, the plaintiff was delivering pizzas in the course of his employment. While attempting to make a left turn, the plaintiff’s vehicle was struck in the rear by a following vehicle. The plaintiff testified he felt pain immediately after the collision and received medical treatment.
The medical evidence presented by deposition was given by Dr. Thomas J. O’Brien and Dr. Winston Griner.
Dr. O’Brien was first of the opinion the accident could be the cause of pain which the plaintiff suffered based upon examination and tests which showed not only degeneration of the plaintiff’s back, but also a bulging disc. This diagnosis was made without Dr. O’Brien being aware of previous injuries the plaintiff had suffered. When Dr. O’Brien reviewed tests done prior to the April 13, 1996 accident, he concluded the accident for which he was seeing the plaintiff did not cause the injuries the plaintiff suffered.
Dr. Winston Griner, a pain management specialist whose clinic treated the plaintiff, testified the accident of April 16, 1996, was the cause of plaintiff’s spinal problem and the pain that he was suffering.
Dr. M. Robert Weiss filed a standard form medical report which reported on three separate dates concerning the plaintiff’s health. Dr. Weiss was of the opinion the plaintiff’s problems pre-dated the April 13, 1996 accident. Dr. Weiss was of the opinion the accident of April 13, 1996, did not cause or advance the plaintiff’s physical problems.
The judgment of the trial court is based upon the assessment by the trial judge of the credibility of the witnesses in this case. The trial court found the testimony of Dr. O’Brien and of Dr. Weiss to be credible and found the testimony of Dr. Griner not credible. The trial judge has the discretion to accept the opinion of one or more experts over that of another or others when more than one expert testifies in a case,Kellerman v. Food Lion Inc., 929 S.W.2d 333 (Tenn. 1996), and though we may make an independent evaluation of medical evidence based upon evidence given by deposition or by report, Cooper v. INA, 884 S.W.2d 446
(Tenn. 1994), to determine where the preponderance of the evidence lies, we will not overturn the finding of the trial judge on this basis unless the evidence clearly preponderates against the finding of the trial judge.
The trial judge also found that the plaintiff was not a credible witness. The trial judge made the determination based upon the testimony of the plaintiff at trial, which was inconsistent at times with a pre-trial deposition of the plaintiff. When the trial judge has seen and heard the testimony of a witness a reviewing court must give great deference to such finding. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987).
The plaintiff makes a specific complaint concerning the following finding of the trial judge on the issue of plaintiff’s credibility:
“Plaintiff came to the United States in 1991 for a karate tournament and sought political asylum here because King Hussein of Jordan was forcing the Jordanian people to fight for the Iraqi government against the United States’ interests. The Court finds this very questionable . . .”
The comment by the trial judge is based upon the plaintiff’s testimony of how he came to be in this country and how he came to stay here. This comment suggests the trial judge didn’t believe the plaintiff’s testimony. It does not show a prejudice by the judge toward the plaintiff’s national origin,
nor does it show the judge’s opinion was tainted by this consideration.
The judgment of the trial court is affirmed. The costs of this appeal are taxed to the plaintiff.
This case is before the Court upon 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, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel’s findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by the appellant, Muhannad H. Al-Rusheidat, for which execution may issue if necessary.