Fink v. Caudle
| Decision Date | 07 July 1993 |
| Court | Tennessee Supreme Court |
| Parties | Judy L. FINK, Plaintiff-Appellant v. June CAUDLE, Individually and as Executrix of Harold C. Caudle and d/b/a Caudle Veterinary Clinic, Firemans Fund Ins. Co., and Sue Ann Head, Director of the Division of Workers' Compensation, Defendants-Appellees. |
Alan Housholder and J.P. Barfield, Nashville, for plaintiff-appellant.
Michael Lee Parsons, Gracey, Ruth, Howard, Tate & Sowell, Nashville, for June Caudle and Firemans Fund.
Charles W. Burson, Atty. Gen. and Reporter, Dianne Stamey Dycus, Asst. Atty. Gen., Nashville, for Sue Ann Head, Director.
This case is before the Court upon motion for review pursuant to T.C.A. § 50-6-225(e)(5)(B), 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 motion for review is not well-taken and should be denied.
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. The Panel's Opinion shall be published.
SPECIAL WORKERS' COMPENSATION APPEALS PANEL
AT NASHVILLE
June 3, 1993
Members of Panel:
FRANK F. DROWOTA, III, Associate Justice, Supreme Court, JAMES M. SWIGGART and JOE C. LOSER, Jr., Retired Judges.
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.
In this case, the employee questions the trial court's finding that she did not suffer an injury by accident on October 4, 1990, and the consequent denial of benefits. The Panel finds that the evidence preponderates against that finding and that the judgment should be reversed.
At the time of the trial on March 10, 1992, the employee, Judy L. Fink, was forty-four years old and had an eighth grade education, with no vocational training. She had worked as a waitress, as a furniture assembler and as an animal caretaker for the employer, June Caudle d/b/a Caudle Veterinary Clinic.
The employment relationship between the parties began in 1987. Mrs. Fink first injured her back in March, 1988. At the time, Mrs. Fink's average weekly wage was $170.00 per week. Her duties required bending, lifting and sometimes heavy lifting, stooping and a great deal of activity, such as retrieving large and small dogs, holding them for the veterinarian and emptying trash, going frequently up and down stairs between the work area and the basement. She saw Dr. Jerry Hunt on April 1, 1988 with pain in her low back and buttock and down her left leg into her ankle. After conservative care failed to relieve her symptoms, Dr. Hunt ordered a CT scan and lumbar myelogram, which confirmed a diagnosis of herniated disc at L,4-5 on the left side. On June 6, 1988, the doctor performed a partial laminectomy with excision of the herniated disc. Mrs. Fink reached maximum medical recovery in September, 1988 and returned to work without any restrictions and resumed doing the same work as before. Dr. Hunt did not make an impairment rating at that time, but, in his deposition testimony for the present case, which involved the October 4, 1990 injury, he testified that his opinion would have been, if requested, that the claimant would have retained an impairment of at least eight percent of the whole person as a result of the March, 1988 injury. He was asked and answered as follows:
* * *
Q. But, as a matter of definition, she would have retained a permanent partial impairment in correspondence with the AMA Guides as a result of that injury and surgery, is that correct?
A. Yes.
Q. And at a minimum, that impairment would have been eight percent of the whole person. Is that correct, sir?
A. Yes.
Q. And to your knowledge, sir, did she have any impairment in addition to that eight percent of the whole person after the first surgery?
A. Not to my knowledge.
Q. So the first surgery was, in fact, a surgically treated disc lesion with no residual symptoms?
A. That's correct.
Q. And she had a full range of motion after that. Is that correct, sir?
A. Yes.
* * *
On October 18, 1988, Mrs. Fink and her employer's insurer, Firemans Fund Insurance Company, jointly petitioned the Second Circuit Court for Davidson County for approval of a settlement based upon temporary total disability benefits in the sum of $3,113.50 and permanent partial disability benefits in the sum of $9,067.20 based on twenty percent permanent, partial disability, for a total of $12,180.70 in disability benefits. As to medical benefits, the joint petition included the following:
It is agreed that all medical, surgical and other benefits provided by the (Workers' Compensation) Act have been furnished by the employer and insurer in the amount of $8,547.98, and will close future medicals....
The judge of that court found the settlement to be a "compromise" of the employee's claim and "to the manifest best interest" of the employee. Permanent, partial disability benefits were paid to the claimant in a lump sum. It was averred in that petition, contrary to his present testimony, that Dr. Hunt "has advised that the (employee) will retain a 5% permanent partial impairment to the body as a whole" as a result of the March, 1988 injury. It appears that Mrs. Fink did not have the benefit of counsel in that case.
In June of 1989, the claimant injured her back again while lifting a dog from the floor to a table. For that injury she was treated by Dr. Vaughan Allen. Dr. Allen did not testify in the present case, but Mrs. Fink's uncontradicted testimony concerning her second injury was as follows:
* * *
Q. What happened in June of 1989?
A. I was lifting a Chow dog, to get ready to clip him, from the floor, and I lifted him up to the table where I was to clip.
Q. Then what happened?
A. And I pulled the same thing in my back.
Q. Did you receive any treatment for your injuries?
A. Yes, sir. I went to Dr. Vaughan Allen; and I had to have tests run and all. He determined that I had to have surgery again.
Q. Was the surgery performed?
A. Yes, sir.
Q. Did you recover from those injuries?
A. Yes, sir.
Q. Did you go back to work at Caudle?
A. Yes, sir.
Q. Before October, 1990, what were you doing at Caudle Veterinary Clinic? What were your duties there?
A. Cleaning the runs, bathing the dogs, clipping the dogs. And they had us, once a week, helping the doctors upstairs during surgery.
Q. What would you do when you helped them in surgery?
A. Mostly I'd get the equipment ready for the surgery. I would scrub the dog down with the Betadine solution and, if they had to be clipped on the stomach, I would clip the dog's stomach.
Q. Had you recovered from your injuries from your two prior--or the two injuries? Had you recovered?
A. Yes, sir.
* * *
The second injury, the one which occurred in June, 1989, prompted another joint petition to the Second Circuit Court for approval of a compromise settlement. This petition sought approval of payment in the sum of $4,538.76 for her temporary total disability of thirty-seven weeks and one day, of $15,900.00 for her permanent partial disability, which represented 109.1 weeks (approximately twenty-seven percent), and all medical expenses to January 10, 1990 plus six months. Any "further, other or additional claims for medical care" were waived by the employee. Upon a finding that Dr. Allen had estimated Mrs Fink's permanent, partial disability at ten percent to the body as a whole and that the settlement was in the best interest of the employee, the Judge approved the settlement and ordered that the employer was "forever released and discharged from any further liability of any sort whatsoever to [Mrs. Fink] on account of the accident, injuries, disabilities, medical expenses, aggravations of pre-existing conditions, changes in her condition, or otherwise." Again, Mrs. Fink was acting without the benefit of counsel, and apparently received a lump sum payment of permanent disability benefits.
On October 4, 1990, the claimant, while working for the employer, was lifting a forty to sixty pound bag of soiled newspapers from a can when she felt a sharp pain. Her uncontradicted testimony of the event was as follows:
* * *
Q. What happened in October of 1990?
A. It was similar. I was lifting a garbage sack from a garbage can, but this time I leaned it downwards and I was pulling it out.
Q. What was in the garbage?
A. It was soiled newspapers and it was completely up to the top, because we had those 60 pound garbage bags that we generally filled to the top with soiled newspapers.
* * *
Q. What happened? How did you injure yourself?
A. Well, when I pulled--I laid the garbage can downwards this time and I pulled the sack outwards, and that's when I felt the sharp pain in my back; and it ran down my left leg.
* * *
She continued working that morning, but left shortly after noon with her supervisor's permission. As she was driving home, she again was struck by the same sharp pain. The next day she saw a doctor in Ashland City. That doctor suggested she return to Dr. Hunt, whereupon she notified her employer of her work related claim.
She saw Dr. Hunt on October 9, 1990, and gave the history as stated in her testimony. Dr. Hunt noted that she also had a sensation of numbness or tingling in her left leg. Again, Dr. Hunt began with conservative care. He ordered an MRI which showed some scarring at the level of previous surgery and extending to the lower level, with evidence of a bulge of the disc at the previous operative...
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