Foreman v. Automatic Systems, Inc.

• Decision Date: 31 December 2008
• Docket Number: No. M2007-00325-SC-WCM-WC.,M2007-00325-SC-WCM-WC.
• Citation: 272 S.W.3d 560
• Parties: Penny FOREMAN v. AUTOMATIC SYSTEMS, INC. et al.
• Court: Tennessee Supreme Court

272 S.W.3d 560

Penny FOREMAN v. AUTOMATIC SYSTEMS, INC. et al.

No. M2007-00325-SC-WCM-WC.

Supreme Court of Tennessee, at Nashville.

October 1, 2008 Session.

December 31, 2008.

Richard C. Mangelsdorf, Jr., Nashville, Tennessee, for the appellants, Automatic Systems, Inc. and Liberty Mutual Insurance Company.

Stephen K. Heard and Adam O. Knight, Nashville, Tennessee, for the appellee, Penny Foreman.

Phillip P. Welty and Mary Taylor Gallagher, Nashville, Tennessee, for the intervenor/appellee CIGNA HealthCare.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., GARY R. WADE, J., and E. RILEY ANDERSON and ADOLPHO A. BIRCH, JR., SP. JJ., joined.

Factual & Procedural History

In this appeal, we determine the extent of Employee's disability as a result of her June 24, 2004, work-related back injury. Prior to this work-related injury, Employee had been treated intermittently for back problems since 1995. The trial court determined that the June 24 injury caused only a temporary aggravation of Employee's pre-existing condition and that this aggravation had resolved itself by September 7, 2004. On appeal, the Special Workers' Compensation Appeals Panel agreed that Employee sustained only a temporary aggravation of her pre-existing condition. However, a majority of the Appeals Panel determined that Employee's temporary aggravation had not reached maximum recovery until November 2, 2005, and thus, Employer should be responsible for Employee's disability benefits and medical expenses until that time. Upon review of the record, we hold that the record does not preponderate against the trial court's findings. Accordingly, we reverse the Appeals Panel and reinstate the trial court's judgment.

Penny Foreman ("Employee"), forty-seven years old at the time of trial, has a high school diploma, two years of college education, and technical training in computer-assisted drafting. Her work history includes employment as a waitress, shipping clerk, and ironworker. In 1989, she enrolled in an ironworker's apprenticeship through the Ironworkers Union. Since her completion of the apprenticeship in 1992, Employee, except in times of layoff, has been a full-time ironworker.

As an ironworker, Employee assisted in the construction and "fabrication of steel members." As Employee explained, "[w]e assemble machinery, we set machinery-just about anything having to do with heavy industrial commercial construction with regards to structural steel, mechanical and machinery applications." Employee testified that her average work week is 60 to 65 hours per week. Employee's husband, also an ironworker, testified that "[ironwork is] very dangerous work, very strenuous work. You have to be in tiptop shape to do it. It involves a lot of climbing, carrying heavy objects, [and] wearing a structural tool belt which weighs 50 plus pounds."

In January 1995, while employed by Du Pont at its New Johnsonville plant, Employee was involved in a rear-end automobile collision. This injury was not work-related. Following the accident, Employee went to the Goodlark Regional Medical Center Emergency Room in Dickson, Tennessee, with complaints of back pain. Employee was treated by Dr. Jan Gorzny. According to Dr. Gorzny's office notes,¹ Employee's "chief complaint" was "deep burning, pain upper back, left shoulder, neck, [and] H.A."² After performing a physical examination of Employee, Dr. Gorzny ordered x-rays of Employee's left hip, left shoulder, lumbar spine, cervical spine, and pelvis. Dr. Gorzny's diagnosis was multiple contusions and muscle strain. Dr. Gorzny prescribed medication and ordered Employee to "rest, ice, heat — per instructions." Employee's husband testified that Employee missed approximately one month of work following this car wreck due to back pain.

On March 8, 2001, Employee again visited Dr. Gorzny with complaints of "discomfort in her low back over the left side in the paraspinal muscle with referral of pain down the left leg to the little toe," which had persisted for approximately two weeks. Dr. Gorzny's notes do not reflect that Employee related that her work caused this pain. Dr. Gorzny diagnosed Employee as having sciatic nerve inflammation or irritation. He recommended "injecting the trigger point with Depo-Medrol and Xylocaine." Dr. Gorzny also ordered x-rays of Employee's spine and left hip.

X-rays, taken on March 12, 2001, revealed grade I spondylolisthesis³ of L5, specifically "[t]here is anterior displacement of L5 relative to S1, and pars interarticularis defects⁴ are noted bilaterally at L5." Employee returned to Dr. Gorzny's office on March 16. After reviewing the xrays, he noted that "[Employee's] symptoms are related to the spondylolisthesis. She has a very deep slip angle along the sacrum." Given this diagnosis, Dr. Gorzny recommended "management with conservative modalities, including obtaining [a] back brace, refer[ral] to physical therapy and Vioxx 25 mg. daily." Employee testified at trial that she was unaware that Dr. Gorzny diagnosed her in 2001 as having spondylolisthesis. As she explained, "he has a very thick accent, and to be quite frank with you, I couldn't understand pretty much ninety to a hundred percent of anything he was telling me, and that's why I called my insurance company and asked them if I could get another doctor."

On March 28, 2001, Employee visited Dr. Daniel Burrus, an orthopedic surgeon whose primary practice is treating spine-related problems. On the medical intake form, Employee noted pain in her lower back, left hip, and right leg. In Dr. Burrus' office notes, however, he wrote that Employee presented with complaints of back and left leg pain radiating "down her left lower extremity." Employee explained that her pain began four to six weeks earlier without specific injury and that the pain had progressively worsened since that time. After conducting a physical examination, Dr. Burrus noted that Employee had "moderately diminished range of motion" in her back; "[t]here is pain with extension." Dr. Burrus' impression was that Employee's pain was caused by "symptomatic spondylolisthesis." Dr. Burrus recommended "an MRI to fully evaluate this." He also noted, "We will probably try a course of physical therapy versus epidural steroids before considering the potential for surgical intervention." Dr. Burrus recommended that Employee return in three weeks.

An MRI, taken on March 30, 2001, revealed grade I spondylolisthesis of L5 on S1 secondary to "bilateral chronic appearing spondylolysis." After reviewing the MRI report, Dr. Burrus recommended conservative management with a Medrol Dosepak and physical therapy.

On June 20, 2001, Employee returned to Dr. Burrus' office for a follow-up appointment. At this time, Employee reported improvement and related that physical therapy had significantly reduced her symptoms, noting that she had only occasional pain.

On July 17, 2002, Employee was involved in another non-job-related rear-end automobile collision. Following the collision, Employee went to the Clarksville Emergency Room for x-rays. She missed two days of work.

On July 31, 2002, Employee returned to Dr. Burrus' office with complaints of back and lower left extremity pain. On Dr. Burrus' medical intake form from that visit appeared a picture of the human body with the instruction, "On the picture below, please mark `xxxx' over the areas where you have pain." Employee placed "xxxx" on the lower back, lower spine, upper left leg, left pelvis, and upper right leg areas of the image. After a physical examination and review of x-rays, Dr. Burrus determined that her pain was an aggravation of her spondylolisthesis, and he recommended continuation of her exercise program.

On June 10, 2003, Employee returned to see Dr. Burrus with complaints of increased pain in her back, similar to what she had previously experienced, and pain and burning in her coccygeal area. Dr Burrus opined that this pain was caused by a local irritation of her coccyx.

In March 2004, Employee began working for Automatic Systems, Inc. ("Employer") at the Nissan Plant in Smyrna, Tennessee. On May 7, 2004, Employee again returned to Dr. Burrus with complaints of back pain similar to what she had experienced previously. Employee related to Dr. Burrus that she had managed her pain predominantly with herbal supplements, but at times, the pain was "much more problematic." Given her pain, Employee questioned "whether a pain management type environment would be appropriate." Dr. Burrus opined in his office notes, "She (Employee) notes most of the time she doesn't have to take anything for her symptoms but occasionally she has significant aggravation." Dr. Burrus noted that Employee's back range of motion was mildly diminished and that she was "tender in the lower lumbar region in the area of her spondylolisthesis." Dr. Burrus ordered x-rays, which revealed no significant progression of her spondylolisthesis.

Based on his physical examination and the x-ray findings, Dr. Burrus provided Employee with pain medication "for when the symptoms were very severe" and discussed the option of surgical intervention. During his deposition, Dr. Burrus explained that he suggested possible surgical intervention at that time because, "for a spondylolisthesis, a fusion type⁵ of operation is generally the recommended treatment." Dr. Burrus explained that he considers two criteria before recommending surgical intervention: first, "[whether] the patient had a neurologic deficit or a progressive neurologic deficit"; and second, "whether the pain that they are experiencing ... is interfering with their lifestyle enough that they would want to consider doing something from a surgical standpoint." Dr. Burrus testified that Employee was not interested in pursuing surgical intervention at that time.

On June 24, 2004, while working for Employer, Employee was moving 100-pound pallets with a co-worker...