Ivey v. Trans Global Gas & Oil

• Decision Date: 13 September 1999
• Docket Number: 98-00037
• Citation: 3 S.W.3d 441
• Parties: CAROLYN SUE IVEY, Plaintiff/Appellant v. TRANS GLOBAL GAS & OIL, d/b/a BREAD BOX FOOD STORE, STORE NO. 42, Defendant/Appellee.IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED:
• Court: Tennessee Supreme Court

CAROLYN SUE IVEY, Plaintiff/Appellant v TRANS GLOBAL GAS & OIL, d/b/a BREAD BOX FOOD STORE, STORE NO. 42, Defendant/Appellee

No. 03S01-9804-CH-00037

IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FILED: September 13, 1999

KNOX CHANCERY

Hon. Frederick D. McDonald

For the Appellant:

David H. Dunaway, Dunaway & Associates, LaFollette, Tennessee

For the Appellee:

Imogene A. King, Frantz, McConnell & Seymour, LLP, Knoxville, Tennessee

FOR PUBLICATION

(Workers' Compensation)

REVERSED IN PART; AFFIRMED AS MODIFIED IN PART

BARKER, J.

OPINION

In this workers' compensation action, the employee, Carolyn Sue Ivey (plaintiff), filed a claim for relief based upon a chronic mental disorder that arose after she was robbed at gunpoint while working at a convenience store. The trial court found that the plaintiff is permanently and totally disabled, as defined in Tenn. Code Ann. 50-6-207(4)(B) (Supp. 1998), and awarded benefits to be paid until the plaintiff reaches the age of sixty-five.

The employer, Trans Global Gas & Oil, Inc. (defendant), appealed the trial court's decision to the Special Workers' Compensation Appeals Panel for findings of fact and conclusions of law pursuant to Tenn. Code Ann. 50-6-225(e)(5) (Supp. 1998). The Panel affirmed the trial court's finding that the plaintiff is permanently and totally disabled, but determined that the plaintiff's injury pertains to her mental faculties as enumerated at Tenn. Code Ann. 50-6-207(3)(A)(ff). Under that statute, the Panel concluded that the plaintiff is entitled to recover benefits for the scheduled period of four hundred weeks.

The plaintiff, thereafter, filed a motion for full-court review of the Panel's decision pursuant to Tenn. Code Ann. 50-6-225(e)(5)(B). We granted the appeal to address whether the plaintiff's injury pertains to a scheduled member under Tenn. Code Ann. 50-6-207(3)(A)(ff) and whether she is permanently and totally disabled as defined at Tenn. Code Ann. 50-6-207(4)(B). For the reasons that follow, we conclude that the plaintiff's injury falls within the schedule for mental faculty injuries at section 207(3)(A)(ff). Accordingly, both the trial court and the Panel erred in adjudging the plaintiff as permanently and totally disabled. The judgments of the trial court and the Panel are reversed in that respect.

We affirm the Panel's decision to treat the plaintiff's mental disorder as a scheduled-member injury under section 207(3)(A)(ff). However, because the plaintiff has not suffered a total loss of her mental faculties, as provided in section 207(3)(A)(ff), we find that she is not entitled to recover benefits for the maximum four hundred week period. Based upon the evidence in this case, we modify the plaintiff's recovery to three hundred weeks.

BACKGROUND

The plaintiff was thirty-nine years old at the time of trial and had been employed at the defendant's Bread Box Food Store since 1994. Initially, she worked as a clerk operating the convenience store's cash register, stocking food shelves, and cleaning the store property. After approximately one year, she was promoted to the position of assistant manager on the 2:30 p.m. to 11:00 p.m. shift. Her work duties remained essentially the same except that she became responsible for paper work, bank deposits, and keys to the store.

On April 3, 1996, while working alone at the store, the plaintiff was robbed by a female assailant who pointed a cocked handgun directly in her face. The plaintiff complied with the assailant's demands and did not suffer any physical injury during the robbery. Since that time, however, the plaintiff has complained of chronic emotional problems including stress, anxiety, and depression. She has expressed a constant fear that the assailant will return to kill her and is afraid to leave her house unless accompanied by friends or relatives. She also has difficulty concentrating and thinking clearly when around large groups of people and is reluctant to interact with strangers. Although the defendant has offered her several employment opportunities since the robbery, she has not engaged in any gainful employment aside from babysitting a relative's child in her home for fifty dollars a week.

Approximately one week after the robbery, the plaintiff was referred to Dr. Kelley Walker for psychiatric treatment and evaluation.¹ Dr. Walker became the plaintiff's primary treating physician between April 11, 1996, and the trial date on December 10, 1997. Dr. Walker testified in her deposition that she initially diagnosed the plaintiff as suffering from an acute adjustment disorder with anxiety. Through both medicine and counseling, she had expected the plaintiff to recover from the emotional trauma and to return to work eventually.

As part of the initial treatment, Dr. Walker encouraged the plaintiff to seek psychotherapy from a list of recommended psychologists.² Dr. Walker testified that psychotherapy offered a potential benefit to the plaintiff during the early acute stages of her emotional injury. The record reflects that the plaintiff went to two psychotherapy sessions under the care of a Dr. Slaven³ in April and May of 1996. The plaintiff declined further treatment by Dr. Slaven and told Dr. Walker that the sessions with Dr. Slaven made her feel stupid. Dr. Walker urged the plaintiff to obtain psychotherapy from other psychologists and recommended that she see Dr. Denise Tope. Despite Dr. Walker's advice, the plaintiff did not pursue additional psychotherapy.⁴

The plaintiff's treatment consisted primarily of medicine and psychiatric counseling from Dr. Walker. Dr. Walker prescribed various anti-depressant and anti-anxiety medications for the plaintiff and monitored her condition during their meetings. After several months of evaluation, Dr. Walker noted that the plaintiff's symptoms were becoming chronic. Those symptoms included intense paranoia when in public areas, fear of strangers and crowded places, difficulty sleeping and relaxing, occasional flashbacks and anxiety attacks, and feelings of hopelessness and depression. Dr. Walker opined that the plaintiff's symptoms were all related to the trauma that she experienced from the robbery. Because those symptoms persisted, Dr. Walker ultimately diagnosed the plaintiff with posttraumatic stress disorder.

Dr. Walker testified that during the early stages of the plaintiff's disorder, she encouraged the plaintiff to return to some type of gainful employment.⁵ Dr. Walker opined at that time that subsequent employment would help the plaintiff to rebuild her self-esteem and would instill productivity back into her life. With the assistance of Jane Colvin-Roberson, a case manager hired by the defendant, Dr. Walker discussed options for the plaintiff's gradual return to the work force. The defendant offered the plaintiff several employment options during the summer and fall of 1996, including her previous position at the Bread Box Food Store, similar positions at other nearby convenience stores owned by the defendant, and a position with one of the defendant's larger grocery stores.⁶ The plaintiff also considered working in maid service for a motel as she had previously done. Nevertheless, she did not return to any form of employment except a part-time babysitting job.

On January 16, 1997, Dr. Walker reported to Ms. Colvin-Roberson that the plaintiff had reached maximum medical improvement. Dr. Walker opined that the plaintiff still suffered from post traumatic stress disorder with a moderate permanent clinical impairment. Due to the plaintiff's chronic anxiety and fear of public places, Dr. Walker changed her initial opinion concerning the plaintiff's ability to work. Dr. Walker testified that based upon her most recent evaluations of the plaintiff in the Fall of 1997, she believed that the plaintiff would not be able to sustain meaningful employment outside her home.⁷

Dr. Walker's opinion was corroborated by Dr. Jerry B. Lemler,⁸ who examined the plaintiff at the request of plaintiff's counsel. Dr. Lemler conducted a ninety-minute interview of the plaintiff on April 15, 1997. Based upon his evaluation and the initial patient report from Dr. Walker, Dr. Lemler diagnosed the plaintiff with post traumatic stress disorder. He characterized her condition as "moderate" under the fourth edition of the American Medical Association (AMA) guidelines, indicating that the plaintiff has some, but not all, useful functioning. Dr. Lemler testified in his deposition that the plaintiff's high anxiety level inhibits her ability to focus and to engage in meaningful social interaction. As related to employment, Dr. Lemler opined that the plaintiff would be unable to concentrate for any sustained periods of time and would be unable to tolerate ordinary work stresses outside of her home. He concluded that the plaintiff could not engage in gainful employment on a consistent basis.

Over the objection of the defendant's counsel, both Dr. Lemler and Dr. Walker assessed the plaintiff's mental impairment at fifty percent to the body as a whole. The impairment rating came from an outdated second edition of the AMA guidelines. Both doctors acknowledged that under the current fourth edition of the AMA guidelines, there is no scientifically accepted method for assigning a percentage of impairment to emotional injuries. The fourth edition of the AMA guidelines cautions that the use of percentages for psychological impairments is highly subjective. Nevertheless, both doctors relied upon the second edition of the AMA guidelines, at the request of plaintiff's counsel, to assign a percentage of impairment. The doctors opined that the plaintiff's impairment will most likely persist for the remainder of her life.

Dr. Norman Hankins, a vocational expert, testified by deposition that he evaluated the plaintiff on two separate occasions to assess any vocational disability. Dr. Hankins first interviewed the plaintiff on March 26, 1997. He examined ...