Jumper v. Kellogg Co.

Decision Date23 June 2021
Docket NumberNo. W2020-01274-SC-R3-WC,W2020-01274-SC-R3-WC
PartiesGWENDOLYN JUMPER v. KELLOGG COMPANY, ET AL.
CourtSupreme Court of Tennessee

Appeal from the Court of Workers' Compensation Claims

No. 2017-08-1353, Amber E. Luttrell, Judge

Gwendolyn Jumper ("Employee") filed this action against Kellogg Company ("Employer"), seeking workers' compensation benefits for an injury to her back. Following a hearing, the Court of Workers' Compensation Claims denied Employee's claim for workers' compensation benefits. Employee has appealed. The appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

Tenn. Code Ann. § 50-6-217(a)(2)(B) (Supp. 2020) Appeal as of Right; Decision of the Court of Workers' Compensation Claims Affirmed

ROBERT E. LEE DAVIES, SR. J., delivered the opinion of the court, in which CORNELIA A. CLARK, J., and DON. R. ASH, SR. J., joined.

Steve Taylor, Memphis, Tennessee, for the appellant, Gwendolyn Jumper

Cameron Watson, Memphis, Tennessee, for the appellees, Kellogg Company and Old Republic Insurance Company

OPINION
Factual and Procedural Background

Employee filed a Petition for Benefit Determination on April 27, 2018, stating that she hurt her back at work, and identifying a date of injury of December 16, 2016. The case proceeded to a compensation hearing before the Court of Workers' Compensation Claims on July 1, 2020.

Stipulations of the Parties

Employee was 54 at the time of trial and has a high school education. The parties stipulated that Employee gave notice of a back injury to Employer on November 17, 2016. The parties also stipulated that Employee received authorized medical treatment from Dr. Stephen Waggoner, and those benefits were paid by Employer. The parties further stipulated that Employee had a prior injury to her back in 2003. Employee continues to work for Employer earning the same or greater wage as she was earning prior to the injury.

Trial Testimony of Employee

Employee testified that she has worked for Employer for thirty years. She has had a number of manual jobs over the years involving bending, lifting, and twisting. She experienced problems with her lower back in November 2016 while working for Employer. Those problems were not related to a specific incident at work on a specific date, but rather the pain in her back gradually increased. Employee reported the pain to an Employer representative, telling him that the work was "killing" her back. The representative instructed Employee to visit the company nurse, and the nurse told Employee to write down the problem she was having with her back, and that she would send it to Employer's workers' compensation personnel. Employee provided a written statement on November 17, 2016, concerning her back injury stating: "From 2003-2014, I have worked on numerous jobs here at the Rossville plant. I worked in batter mix, which required lots of lifting. I have worked in the wheel room on MOD5, which I have done a lot of lifting and dumping bits. The stacker requires lifting - some lifting and dumping waffles. I worked in the packaging area, which required a lot of lifting of the cartons onto the machine." Employee stated that she put the years 2003-2014 in the statement because that was when she reported having problems with her back.

Employer provided Employee with a panel of physicians, and Employee selected Dr. Stephen Waggoner. Dr. Waggoner had Employee's records from two previous physicians—Dr. Hermann and Dr. Saenz—who had treated Employee for her back. Employee explained that in 2003 she was injured at work and was treated by Dr. Hermann. Employee hurt her back again in 2014 while lifting a barrel at work. She testified that shereported that injury to Employer, but that Employer did not do anything about it. She then spoke with her family doctor who referred her to Dr. Saenz. Dr. Saenz prescribed physical therapy and medication. When Employee saw Dr. Waggoner after reporting pain in November 2016, he released her, and Employer denied her workers' compensation claim. Employee then began seeing Dr. Saenz again, who ordered an MRI, which showed "something was wrong" with her back. Dr. Saenz then referred Employee to Dr. Crosby who ultimately performed surgery in August 2017.

Employee testified that the pain she experienced in November 2016 was "way worse" than the pain she experienced in 2014. The surgery Dr. Crosby performed helped "a whole lot" and "relieved a lot of pain." Employee testified that she still has some pain in her low back and down her leg, but it is "[j]ust a little bit." Employee took five to six weeks off of work after the surgery, and is now back at work with Employer, working as a supervisor lead, which is much easier on her back.

On cross-examination, Employee testified that she told Dr. Waggoner she had been having trouble with her back for years. Employee further testified that she was told by Dr. Waggoner that her back injury was not causally related to her employment, and she did not take any steps to dispute that with Employer. All of Employee's treatment, with the exception of Dr. Waggoner, was paid for through Employee's private health insurance. Employee testified that she did not receive authorization from Employer to use any physician other than Dr. Waggoner, and did not discuss the need for additional treatment with Employer. After Employee had her surgery with her private insurance in August 2017, she received short-term disability benefits through Employer's policy, but does not think she told Employer that her surgery was work related. Employee stated that she referenced the 2003-2014 time frame in her note on November 17, 2016, because she had previous back problems during that time period. Employee said her back has gotten worse over the years, and she felt that work was causing it. Employee did not recall any particular incident at work that would have triggered the recurrence of her back pain, but rather the pain was gradually increasing. Employee testified that Dr. Saenz never told her that her back pain was work related.

On re-direct examination, Employee testified that she determined her back injury was work related in 2016, when she was told that by Dr. Crosby.

Trial Testimony of Natasha Dickson

Natasha Dickson, Employer's Human Resources Manager, testified at trial. Ms. Dickson testified that Employee reported an injury to Employer on December 7, 2017. Employer had previously provided Employee with a panel on November 17, 2016. Employee also notified Employer of an injury on July 6, 2016, in which Employee stated she may have reinjured her back in 2014, and can no longer handle the pain.

Ms. Dickson testified that Employee received short-term disability benefits in August-September 2017. Ms. Dickson further testified that if Employee had reported that she was taking leave for a work-related injury, she would not have received short term disability benefits because an employee cannot claim both short-term disability benefits and workers' compensation benefits. On cross-examination, Ms. Dickson stated that if an employee's workers' compensation claim has been denied, there is nothing improper about an employee applying for short-term disability benefits.

Deposition Testimony of Dr. Glenn Crosby

Dr. Glenn Crosby, a neurosurgeon, testified by deposition. He testified that he first saw Employee on May 25, 2017. Employee presented with a history of pain in her back and down her left leg with tingling aggravated by lifting and bending. Employee told him her pain was relieved somewhat by lying flat on her back with her legs elevated, and she had had some physical therapy. Employee told Dr. Crosby she had been experiencing pain in her back and leg, which she described as tingling without weakness.

Dr. Crosby testified that on physical examination, Employee had back and buttock pain with straight leg raising on the left, and no pain with straight leg raising on the right, with normal strength and reflexes. Dr. Crosby's impression at that time was that Employee had lumbar radiculopathy in the left leg. An MRI scan showed a ruptured disc at L4 to the left. Employee began developing weakness, and Dr. Crosby believed she had progressive nerve damage, which he believed was progressing fairly quickly. He offered her surgery, to be performed as a left L4 microdiscectomy. Employee agreed to the surgery, which Dr. Crosby performed on August 2, 2017. During the operation, Dr. Crosby found that there was a large ruptured disc with the fragment emerging underneath the nerve root, which he testified would explain Employee's left leg pain.

Employee had a post-operative appointment with Dr. Crosby's office on August 16, 2017, and the nurse's notes from that appointment indicate that Employee's leg pain had resolved but Employee still had some soreness in her back. Employee was given a note at that appointment releasing her to return to work on September 5, 2017, with a twenty-pound weight restriction. Employee's last appointment with Dr. Crosby was on November 27, 2017. At that appointment, Employee had some mechanical back pain but stated her leg pain was gone. Dr. Crosby testified that he would not expect Employee's leg pain to return, although it was possible.

Dr. Crosby testified that Employee's counsel wrote him a letter on November 30, 2017, which stated:

I represent Ms. Jumper in a potential workers' compensation claim.
I would like to ask you what is known in the law as a hypothetical question. In answering this question, I would like for you to assume the following facts are true[:] that Ms. Jumper works in a factory which requires her to bend, twist, squat, stoop, push, and pull on a repetitive basis each work day, and further assuming no off-work trauma.
It is my understanding that you
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT