Long v. Mid-Tennessee Ford Truck Sales

• Decision Date: 18 March 2005
• Citation: 160 S.W.3d 504
• Parties: Drexel Wayne LONG, et al. v. MID-TENNESSEE FORD TRUCK SALES, INC., et al.
• Court: Tennessee Supreme Court

160 S.W.3d 504

Drexel Wayne LONG, et al. v.MID-TENNESSEE FORD TRUCK SALES, INC., et al.

Supreme Court of Tennessee, at Nashville.

February 2, 2005 Session.

March 18, 2005.

As Modified on Denial of Rehearing April 18, 2005.

COPYRIGHT MATERIAL OMITTED

Scott Daniel and Melanie S. Lepp, Murfreesboro, Tennessee, for the Appellant, Drexel Wayne Long.

Richard E. Spicer and Christian M. Garstin, Nashville, Tennessee, for the Appellees, Mid-Tennessee Ford Truck Sales, Inc., and Travelers Insurance Company.

OPINION

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined.ADOLPHO A. BIRCH, JR., J., not participating.

We granted review in this workers' compensation case to determine whether "nursing services," as used in Tennessee Code Annotated section 50-6-204(a)(1999), includes care provided by an injured employee's spouse where the spouse is a certified nurse technician.After reviewing the record and applicable authority, we conclude that care provided by a certified nurse technician is compensable under the Workers' Compensation Law irrespective of the relationship between the caregiver and the employee.We further hold that the care here was reasonably necessary and was provided pursuant to what the employee understood to be the physician's orders.Accordingly, we reverse the findings of fact and conclusions of law of the Special Workers' Compensation Appeals Panel as to this issue and remand to the trial court for a determination of the value of the nursing services rendered by Mrs. Long.We affirm as to the other issues raised by the appellant employee.

Background

On July 12, 1995, the employee, Drexel Wayne Long("Long"), injured his right foot while in the course and scope of his employment with Mid-Tennessee Ford Truck Sales, Inc.("Mid-Tennessee") in Nashville, Tennessee.Long filed a workers' compensation claim seeking benefits for the injury, including compensation for the nursing services provided to him by his wife, a certified nurse technician, following surgery for the injury.The complaint also sought benefits based on weight gain and sleep apnea allegedly resulting from the injury.The following evidence was presented before the trial court.

At the time of the injury, Long was working at the parts counter for Mid-Tennessee.His job duties included filling parts orders by retrieving the required parts from the employer's warehouse and bringing them to the counter.

On July 12, 1995, Long was carrying a converter weighing thirty-five to forty pounds on his right shoulder when he felt a sharp pain in his right foot.He testified that "it felt like my right foot just broke in half....I got up, and I couldn't hardly put no weight on my right foot."Mid-Tennessee initially did not believe that Long had sustained a work-related injury and refused to provide medical care.

Long had sustained at least three prior injuries to his right leg and foot.In 1983, Long injured his right leg in a motorcycle accident and underwent five surgeries to repair the damage resulting from the accident.In 1988, Long broke his right ankle in a slip and fall accident in the course and scope of his employment with a previous employer, Bud Jones Trucking.In 1991, Long fractured his right ankle again, this time while working for Mid-Tennessee.Following both the 1988 and 1991 injuries, Long filed and settled workers' compensation claims and thereafter returned to work full time.

Dr. Barrett Rosen, who treated all of Long's leg and foot injuries, performed fusion surgery on his right ankle following the 1991 accident.After the fusion surgery, Dr. Rosen restricted Long from standing or walking for prolonged periods.In 1992, Dr. Rosen assigned Long a 40% impairment rating to the right foot.Long continued to complain of pain in the ankle, and as of 1994, Dr. Rosen had restricted Long from standing for more than one hour at a time.As a result of his multiple injuries, Long developed degenerative arthritis in his foot.The evidence showed that in 1993 and 1994, Long complained to Dr. Rosen of having some difficulty working.In 1994, Long reported "significant swelling" when he was required to be on his feet, which caused him pain and took several days to go away.

Dr. Rosen authorized Long to return to work on light duty following his injury, but Mid-Tennessee had no light-duty work available for Long and made none available.Long has not worked since.He has a high school diploma and has taken some college courses.Additionally, he has worked as an insurance agent and as a supervisor for various employers.

Long continued to have problems with his right foot and underwent a second fusion surgery on February 4, 1997.He remained in the hospital for several days before being discharged.Long testified that when he went home, he was in a full leg cast, was non-ambulatory, and was confined to bed.He was instructed to use a "polar pak ice machine" to regulate the temperature of his leg.He testified that the ice in the polar pak had to be constantly monitored to ensure that the correct temperature was maintained.Shortly after the operation, Long's wound developed a staph infection which took several months to heal.The treatment of the infection required that his bandages be changed every four hours.Long testified that he understood from Dr. Rosen's instructions that he would need home medical care following his surgery.

As a result, Long and his wife, Billie Sue Long, both testified that they requested that home nursing care be provided through the workers' compensation carrier, but they were refused.Since Long was bedridden, his wife took seventeen weeks off from her job at Whirlpool to care for him.Mrs. Long testified that she had been a Certified Nurse Technician ("CNT") since 1994 and that, although she did not work as a CNT at Whirlpool, she had maintained her license and was in fact working as a CNT at the time of trial.

After the surgery, Long continued to complain of significant pain and swelling in his right foot, right ankle, right leg, and back.Long is unable to be physically active due to his injury, and Dr. Rosen eventually prescribed a motorized cart for him to use in getting around.Since the injury, Long has gained a significant amount of weight which, he claims, contributed to or caused him to develop sleep apnea.The evidence showed that Long, approximately six feet tall, weighed about 212 pounds in 1988; 252 pounds in 1990; 264 pounds in 1996; and 309 pounds in November 1999.

Dr. Rosen testified by deposition that the July 1995 injury significantly aggravated Long's problems with his right foot.Dr. Rosen stated that Long's injury has affected his gait, which has caused him to have back pain.The medical records indicate that Long began complaining of back pain in 1990.In 1999, Dr. Rosen testified by deposition that the stresses and strains on Long's back caused by the changes in Long's foot and leg "will create difficulties in the back," but he stated that "the back, itself, was not injured."Dr. Rosen also stated that Long's inability to be active contributed to his weight gain.

Dr. Rosen assigned a permanent medical impairment of 60% to the right foot, 42% to the lower right extremity, and 17% to the body as a whole.Dr. Rosen testified in his 1999 deposition that 40% of the foot impairment was attributable to the prior injuries.He also testified that a portion of the lower right extremity and body as a whole impairment ratings would be attributable to the prior injuries, but he did not give a specific number.

Dr. Jeffrey Herring, who also treated Long, adopted the impairment ratings assigned by Dr. Rosen but opined that only 14% of the impairment to Long's foot and only 4% of the impairment to the body as a whole was attributable to the 1995 injury and the 1997 surgery.

Dr. David S. Knapp, a rheumatologist who performed an independent medical examination, testified that he believed Long's work activities aggravated the pain Long experienced in his foot.He testified, however, that because of Long's history of foot and leg injuries and the 1991 fusion surgery, the 1995 injury would have happened eventually regardless of the type of work Long did.Dr. Rosen also testified in his 1996 deposition that the degenerative changes were "likely" to happen no matter what but were probably speeded up by Long's prolonged standing and walking at work.

Long developed severe obstructive sleep apnea at some point after the 1997 surgery and, in turn, had surgery to address the sleep apnea.Following that surgery, Dr. Jeffrey A. Paffrath found that the surgery had had a minimal corrective effect and that further treatment would be required.Dr. Paffrath stated that the sleep apnea more probably than not arose out of Long's 1995 injury.Dr. Paffrath did not assign an impairment rating for the sleep apnea, stating that although the AMA Guides discuss obstructive sleep apnea, they"do[ ] not give any clear guidance as to how to arrive at a[n] impairment rating."

Dr. William H. Noah diagnosed Long's sleep apnea and opined that Long's injury and condition could, and probably did, increase the severity of Long's sleep apnea.However, like Dr. Paffrath, Dr. Noah did not assign an impairment rating, noting that treated obstructive sleep apnea "has no permanent disability."

The trial court denied Long's claim for permanent total disability, finding a 40% vocational disability apportioned to the right foot.The trial court declined to apportion the injury to the leg or to the body as a whole and also denied benefits based on the weight gain and sleep apnea.The trial court denied without comment the claim for reimbursement for Mrs. Long's nursing care.The Special Workers' Compensation Appeals Panel affirmed the trial court in all respects.We accepted review.

ANALYSIS

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