NOT RECOMMENDED FOR FULL-TEXT PUBLICATIONFile Name: 11a0582n.06
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
OPINION
Before: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff Mark Jones appeals the denial of his motions for judgment as a matter of law and for a new trial filed after the jury returned a verdict finding that he did not prove that his employer, Defendant Nissan North America, Inc., discriminated against him in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101, or the Tennessee Disability Act, Tenn. Code Ann. § 8-50-103 et seq. We REVERSE and REMAND for further proceedings.
FACTS AND PROCEDURAL HISTORY Mark Jones began working for Nissan in 1997, as an auto assembly production technician at Nissan's manufacturing plant in Smyrna, Tennessee. Jones initially worked the night shift on the metal line where he used power tools to do welding and grinding. Later, he worked the "hoodinstall" job on the metal line, working on Nissan Altima cars during the afternoon shift. In April 2003, Jones injured his right elbow while working the "hood install" job.
Jones reported his injury to Nissan, and the company provided him with a choice of three treating physicians from whom he could receive treatment. Jones chose Dr. Douglas Weikert, who diagnosed Jones with right lateral epicondylitis, or tennis elbow. Dr. Weikert treated Jones with therapy and cortisone shots, and eventually recommended surgery, which Jones had in September 2004. Dr. Weikert restricted Jones from returning to work until January 2005, and then released him to return to work with no restrictions. As Jones's treating physician for workers' compensation purposes, Dr. Weikert assigned Jones an anatomical impairment rating of 3% to his right arm.
By 2006, Jones was working the day shift in the trim area of the body shop. This job, "body trim fits," entailed light lifting and did not require the use of power tools. Jones used hand tools - specifically a light rubber hammer, a chisel, and a plastic finesse tool - to adjust car panel gaps. As a part of the job, Jones often had to open and close the hoods of various vehicles; some vehicles' hoods had a hydraulic lift, which allows a hood to hold up its own weight, and some did not. Jones made approximately $25 per hour. In January 2006, Jones visited Dr. Weikert again complaining of discomfort in his arm. Dr. Weikert examined Jones and again released him to return to work with no restrictions as of January 18, 2006.
Jones's supervisor, Area Manager Guerry Marsh, found Jones to be a hard worker and was satisfied with his job performance. He never observed Jones being unable to perform, or having difficulty with, any of the tasks associated with his job. Jones never asked for any changes to be made to his duties; nor did he ever complain that he was having difficulty. Marsh testified that Jonescould do the lifting associated with the body-trim-fits job and could use all of the tools required for the job, and that there was nothing that caused him to believe that Jones could not physically perform the job.
On June 8, 2006, Jones's workers' compensation claim against Nissan for his right-elbow injury was tried in the Chancery Court for Wilson County, Tennessee, before Chancellor C.K. Smith. The court heard testimony from Jones and Guerry Marsh, and considered Dr. Weikert's deposition.
At the conclusion of the workers' compensation trial, Chancellor Smith gave an oral ruling from the bench, stating, in part:
So on 9/21/04 Dr. Weikert performed surgery on the plaintiff here. . . . As I stated, [the doctor] put him back to work full-time with no restrictions.
After the surgery the plaintiff says - and he seems to be a very honest, credible witness. There's no reason for me not to believe him. That he's still having pain and couldn't probably do the job that he was doing at the time of his injury because it required a lot of lifting and more use of vibratory tools. He says that he doesn't think he could use tools that - that vibrate a lot. Right now all he has to use is a hammer and a chisel. And according to the video, that's not how one might imagine one using a hammer and a chisel. It's just a pecking. In other words, not a - not a great deal of chiseling going on. It's just kind of knocking - I forget what he called it - but kind of knocking trim in or screw in or something. But it's very light - light type of use of a hammer and a chisel.
He says that - he asked the doctor not to put him on any permanent restrictions because Nissan is - just won't hardly work you if you've got permanent restrictions. But the doctor didn't say anything about that. He just said that the plaintiff had no restrictions.
He says the job[] he's on now - and it doesn't require any heavy lifting, maybe sometime a hood, the trunk, or whatever, the door, or whatever that back hatch is behind those vans might be called. But it's very light because they have some type of spring fed - something that helps raise the hood and so forth. So they're not very difficult to raise. But he feels like [there are] jobs that are there that require a lot of heavy lifting and use of power tools or vibratory tools, that hewouldn't be able to do. He said he would attempt to do them if it meant do that or lose his job.
He's working . . . back at the same job - or back at the same employer, different job there. He says the pain's constant. It's worse when he's working, and he tires quickly, doesn't have as much grip strength. The only hobby it interferes with basically is throwing a baseball to his boys. He's a baseball coach. He can't throw it as well, he said, as he could before. At the house he can't lift much. And when he has to use a screwdriver to screw something in he has to take breaks. It's painful. Can't use lawn mowers or weedeaters like he could before. The vibration causes him a lot of pain and hurts him. Takes a lot of Advil. And he's on a prescription of anti-inflammatory.
. . . Since his date of release he's missed no work because of this injury. Feels like he could continue to do the job that he's doing. . . . As the area manager testified . . . he had no complaint about the work performance of the plaintiff. . . .
But I believe that he does have a - a disability to his right arm. And if I didn't say this, the doctor gave him a three percent rating to his arm according to the AMA Guides, Dr. Weikert. And I feel like that he has a permanent partial vocational disability of 30 percent to his upper right extremity based on the statements I've made above and the fact that he does have continued pain, can't use certain vibratory tools, lawn mower, weedeater, can't lift as much as he could before. . . .
. . . But based upon all the evidence I've heard - and I do think he has some restrictions and because of that and the pain and the restrictions that I feel like he has based upon his testimony, I think he's entitled to 30 [percent] vocational disability. Thanks, y'all.
(App. 49-53.)
Nissan's counsel then asked the chancellor to elaborate on what restrictions he felt Jones had. The court responded,
I think using - I think tools - like I stated - vibratory tools, lawn mower, weedeater, anything that would vibrate will cause his elbow to hurt. And I think lifting - he's testified to lifting and rolling motion of his arm kind of hurts him and throwing balls and stuff like that. I just think that those are legitimate. And that's what he testified to. Those are the only ones - and he has constant pain all the time as well. Has grip strength loss. I think that's about - I think I've covered mosteverything. I might have left something out. But I think those are the things that -that I feel like that he's lost as a result of this. And because of that I think his vocational disability is substantial, not as substantial maybe as the plaintiffs feel, but I feel like that it's something he's got to live with and deal with the rest of his life, and he should be entitled to [a] vocational disability rating of 30 percent.
(App. 53-54.)
Counsel for Nissan then drafted a written order, which Jones's counsel reviewed and the court signed on June 20, 2006. It incorporated the chancellor's previously stated findings of fact and conclusions of law (excerpted above) and also provided in part:
Plaintiff retains a 3% permanent anatomical impairment to the right upper extremity. Based on this rating, his restrictions against working with power tools and against lifting, his ability to return to his pre-injury employer at or above his pre-injury wage rate, his education, his job skills, and his employability on the open labor market, Plaintiff retains a 30% permanent disability to the right arm. This entitled Plaintiff to XXXX weeks of benefits at the stipulated weekly rate of $ XXXX, all of which have accrued at the time of trial, and, therefore, are due and payable in a lump sum of $XXXX.
. . . It is therefore, ORDERED, ADJUDGED, and DECREED that Plaintiff shall recover from Defendants:
(1) XXXX weeks of permanent disability benefits at the weekly rate of $ XXXX for lump sum of $ XXXX;
(2) future medical expenses pursuant to T.C.A. § 50-6-204; and
(3) reimbursement of discretionary costs totaling $280.00.
(App. 44.) (redaction in original.) Following the trial, Jones returned to his body-fits job.
The award of benefits was higher than Nissan was expecting.1 Nissan initially appealed, but later withdrew its appeal. Jones and his counsel considered asking the court to change or clarify its ruling,2 but did not request an amendment.3
Kitty Boyte, counsel for Nissan in the workers' compensation case, emailed the result of the trial to Nissan's legal department and to Miles Tate, a representative of Nissan's on-site...
