Orman v. Williams Sonoma, Inc.

• Decision Date: 14 January 1991
• Docket Number: No. 5,5
• Citation: 803 S.W.2d 672
• Parties: Sue ORMAN, Plaintiff-Appellant, v. WILLIAMS SONOMA, INC. and Cigna Insurance Company, Defendants-Appellees. /.
• Court: Tennessee Supreme Court

Page 672

803 S.W.2d 672

Sue ORMAN, Plaintiff-Appellant, v. WILLIAMS SONOMA, INC. and Cigna Insurance Company Defendants-Appellees.

No. 5/.

Supreme Court of Tennessee,

at Memphis.

Jan. 14, 1991.

Steve Grubb, Ben Todd, Memphis, for plaintiff-appellant.

Leland M. McNabb, Memphis, for defendants-appellees.

OPINION

DROWOTA, Justice.

In this workers' compensation action, the employee, Sue Orman, Plaintiff-Appellant, has appealed from a judgment of the Circuit Court for Shelby County, dismissing her complaint for workers' compensation benefits. Williams-Sonoma, Inc., Defendant-Appellee, was the Plaintiff's employer when she was injured on September 27, 1985. The dispositive issue before this Court is whether the trial court erred in determining that the employee failed to carry the burden of establishing that she sustained a compensable injury which arose out of and in the course and scope of her employment. For the reasons set forth below, we reverse and remand.

I.

At the time of trial, the Plaintiff was 47 years old, married to a double amputee, had a high school diploma, and was essentially the sole provider for her household. Prior to being employed by the Defendant, her employment history consisted of working as a cashier, school bus driver, and manual laborer in a parts warehouse.

In June 1984, the Plaintiff was hired by Williams-Sonoma, Inc., a retailer and distributor of culinary goods and implements. While first hired to perform duties as an "order filler" in the Defendant's warehouse and distribution center, she began to work as an inspector in September, 1985. Plaintiff testified that on September 27, 1985, while taking inventory, she climbed a steel framed shelving apparatus to move some boxes and count merchandise. In making her descent, her toe became caught between the steel frame and a shelf, causing her to fall face forward onto her chest and wedge her body between two pallets on the floor below. She immediately began to experience pain in her toe, followed by pain in the shoulders, neck, and arms after returning to the inspection line.

Believing that her toe was broken, the Plaintiff consulted the next day with Dr. Michael Hutchison, the company doctor, who treated her on several occasions, specifically for the problems with her toe. Plaintiff testified that she informed Dr. Hutchison of also experiencing pain in the arms, shoulders, and back. Dr. Hutchison prescribed pain medication and informed Plaintiff that she could continue working, but with light duty.

After the Plaintiff continued to complain of pain to Dr. Hutchison, he referred her to Dr. John Howser, a neurosurgeon. Dr. Howser testified that when he first saw the Plaintiff in June 1986, the chief complaints were pain in the shoulders, arms, neck and back. He relates that she was "pushing some boxes" at work when the problems began, but she did not report an injury to her foot or state that she had fallen. After the Plaintiff underwent tests in the hospital, Dr. Howser recommended back surgery, but no surgery was performed because an orthopedic, Dr. Riley Jones, did not concur.

Subsequent to treating the Plaintiff on numerous occasions, including failed attempts with a body cast, Dr. Howser opined that she had reached her maximum point of recovery in August 1987, approximately two years after the injury. He assessed an anatomical disability rating of 2 to 5 percent without surgery, concluding: "She basically has a canal stenosis with an osteoarthritic spur and degenerative subluxation of the vertebrae...." If the Plaintiff undergoes surgery at some point in the future, the impairment rating will be considerably greater (approximately 15 percent neurologically and another 15 percent orthopedically).

Significantly, Dr. Howser advised the Plaintiff not to bend, stoop, or lift, and also stated that he was not at all surprised that she could not work. He noted: "She is significantly disabled from an industrial standpoint because of the inability to lift, bend, or stoop and having to work in a back brace, and this restricts her job opportunities to a very, very small segment of the job market...." Dr. Howser made it clear that the Plaintiff was not to do any bending, lifting, stooping, or climbing. Finally, he opined that her physical condition was compatible with the history of the accident as described by the Plaintiff.

In 1987, Dr. Howser referred the Plaintiff to Dr. Joseph Boals, an orthopedic surgeon, for a second opinion. Dr. Boals saw the Plaintiff on a single occasion in December 1987. He was told by the Plaintiff that she had fallen at work in September 1985, injuring her toe and eventually developing continuous back pain. Dr. Boals testified there was an inconsistency in the Plaintiff's history in that she could not recall "exactly" when the back pain began. He felt she was exaggerating the pain and recommended consultation with a psychologist, although he felt she had mild joint arthritis and a bulging disc. Dr. Boals assessed a five percent permanent anatomical disability rating to the body as a whole and concluded that it was "possible" the incident at work was the source of her problems.

From November 1989 to February 1990, the Plaintiff was treated and evaluated on five separate occasions by Dr. Jan Kloek, a psychiatrist, who described the Plaintiff as being of average intelligence and well motivated. The history taken by Dr. Kloek's office indicates that the Plaintiff had been working up until the injury, actively "lifting, carrying and pushing things." The description of the accident at work coincides with that of Plaintiff's own testimony with respect to catching her toe and falling face down between two pallets. She presented Dr. Kloek's office with a case of severe depression and anxiety concerning her inability to work, lack of income, restriction of activities, and helplessness in dealing with acute pain. The severe depression "occurred following and as a result of the pain and injury suffered from the fall." The psychiatrist testified unequivocally that the Plaintiff was not exaggerating, that she had, in fact, severe depression resulting from continuous pain and the inability to earn a living. Treatment with medication, relaxation techniques, and psychotherapy were basically unsuccessful. Dr. Kloek described her mental condition as consistent with the history of injury as related by her, stated that her prognosis in terms of finding employment was poor, and assessed 65 percent permanent psychiatric impairment to the body as a whole.

The final physician to evaluate the Plaintiff was Dr. Anthony Segal, a neurosurgeon. Dr. Segal met with the Plaintiff at the request of the employer's attorney on a single occasion in March 1988, two and a half years after the incident at work. The Plaintiff related to Dr. Segal the same description of how the accident at work occurred that was related to all the other doctors, namely, that in September 1985, she was working on a shelving apparatus, caught her toe, and fell face forward between two pallets on the floor. She complained of pain in her neck and back. Dr. Segal concluded that even if the accident had occurred in the manner described by the Plaintiff, it would not have caused the problems she was then experiencing. ¹

Prior to trial, the parties stipulated to the following: The injury occurred on September 27, 1985; the Defendant completed the "Employer's First Report of Injury" form on October 15, 1985; the applicable rate of compensation for workers' compensation purposes was $167.03 per week; medical benefits in the amount of $12,698.45 had been paid by the employer; temporary total benefits had been paid in the amount of $2,299.65; the Plaintiff reached the maximum extent of recovery on August 4, 1987; there was no dispute concerning notice, statute of limitations, or her employment status with the Defendant.

The trial in this case occurred on August 23, 1989, nearly four years after the injury. The trial court rendered the following judgment:

"1. Plaintiff's testimony regarding her injury was not credible.

2. Considering all evidence in the case, Plaintiff has failed to carry the burden of proof that she sustained an injury which arose out of and within the course and scope of her employment, and Defendants are not liable for medical expenses incurred by Plaintiff.

3. The complaint for compensation benefits should be dismissed."

II.

Given the fact that this case arose after July 1, 1985, the standard of review to be used by this Court is de novo, accompanied by a presumption of the correctness of the findings of the trial court, unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e). "This standard of review differs from that previously provided and requires this Court to weigh in more depth factual findings and conclusions of trial judges in workers' compensation cases. Where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, on review considerable deference must still be accorded to those circumstances." Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn.1987); Landers v. Firemen's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn.1989). Under the material evidence rule, this Court was required to accept the findings of facts of trial courts if those findings were supported by any material evidence. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 901-02 (Tenn.1984). However, we are no longer bound by the findings of the trial court in these cases and now determine where the preponderance of the evidence lies. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn.1988).

The employer argues that the Plaintiff failed to prove that the injury and disability arose out of and in the course and scope of her employment because inconsistent versions of the injury created doubts as to the weight of medical testimony offered to support her claim. The...