Perry v. Gap, Inc., No. M2004-02525-WC-R3-CV (Tenn. 5/31/2006), M2004-02525-WC-R3-CV.
| Decision Date | 31 May 2006 |
| Docket Number | No. M2004-02525-WC-R3-CV.,M2004-02525-WC-R3-CV. |
| Parties | MONICA D. PERRY v. GAP, INC. |
| Court | Tennessee Supreme Court |
Richard C. Mangelsdorf, Jr. and Stephen B. Morton, Nashville, Tennessee, attorneys for Appellant, Gap Inc.
William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, attorneys for Appellee, Monica Perry.
MEMORANDUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The treating specialist found the Employee not to be impaired due to a pinched nerve in her neck, which was resolving. An independent medical examiner [IME] testified that she retained an 8 percent permanent partial disability impairment. The trial judge accepted the opinion of the IME and awarded the Plaintiff 20 percent permanent partial disability. We do not find that the evidence preponderates against the holding of the trial court. Accordingly, the judgment of the trial court is affirmed.
The Employee alleged that in February 2003 she suffered an injury to her neck and left shoulder, and in July and August 2003 she suffered a gradual injury to her left and right hands, wrists and to both arms. She specifically alleged temporary total disability,1 and permanent partial disability, for which she sought workers' compensation benefits.
The complaint was answered in course. The Employer disclaimed knowledge of gradually occurring injuries and "demanded strict proof of the Plaintiff's claimed entitlement to benefits" while admitting the occurrence of the February 26, 2003 accident.
Trial was held August 31, 2004. The earlier filed depositions of doctors Thomas Tompkins and Walter Wheelhouse were considered by the trial judge, who, following a brief recess, filed a 24-page memorandum opinion emphasizing the testimony of the Employee and awarding her benefits for 20 percent vocational disability.
The Employer appeals, asserting that: (1) the trial court erred in denying the Employer's motion to compel an independent medical exam of the Employee pursuant to Tennessee Code Annotated section 50-6-204(d)(1) and Rule 35.01 of the Tennessee Rules of Civil Procedure; (2) the evidence preponderates against the degree of vocational disability found by the trial court; and (3) the Employee is not entitled to a disability award pursuant to Tennessee Code Annotated section 50-6-205(a) and the policies behind the Workers' Compensation Act.
Appellate review is de novo on the record, accompanied by a presumption that the judgment is correct unless the evidence otherwise preponderates. Tenn. R. App. P. 13(c); Tenn. Code Ann. § 50-6-225(e); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143, 149 (Tenn. 1989).
The Employee is twenty-seven years old, and a single mother of three children. She completed the eighth grade, and has no vocational or occupational skills. She was employed by the Employer when she was eighteen years old.
In February 2003, she testified that she injured her neck and shoulder during the course of her job in "wand and loading," which she described as loading the trailers with boxes of clothing, ranging in weight from 2 pounds to 50 pounds. She felt a sharp pain in her neck which ran through her shoulder. She was seen and treated by Dr. Tompkins on numerous occasions, but contends that no visit or treatment ever exceeded three minutes. She last saw Dr. Tompkins in August 2003, but her pain and numbness continued, interfering with her ability to perform simple household tasks. She never complained at work about her condition. She never mentioned to a supervisor that she was hurting, explaining that if she "said anything she would be put out of work." She earns $13.89 per hour, with health insurance benefits.
The Employee takes ibuprofen daily, but admitted she never asked her treating physician for pain medication. Dr. Tompkins ordered an MRI, which she remembered, but according to the Employee, he never discussed the findings with her. She could not remember the x-ray examinations by Dr. Tompkins. She testified on discovery that she disliked her job, but her response on cross-examination, like many of her responses, was "I don't remember."
Drs. Tompkins and Wheelhouse, each orthopedic specialists, testified by deposition. Dr. Tompkins' assessment was a pinched nerve in her neck, which revealed a small focal posterior disc protrusion at C6-C7, with no evidence of spinal stenosis or impingement on the cervical spinal cord. He continued to see the Employee, and gave a final diagnosis of improving cervical radiculitis. He recommended that she continue wearing a neck brace and continue light duty, with no heavy lifting and no overhead work. She continued to see Dr. Tompkins, complaining that her neck hurt, with some numbness in her hand. Dr. Tompkins suspected carpal tunnel syndrome, but an EMG by another specialist revealed no evidence of carpal tunnel syndrome, ulnar neuropathy, or cervical radiculopathy. She was last seen on August 14, 2003, when her symptoms were better. Dr. Tompkins testified that she has no physical impairment.
The Employee was referred to Dr. Wheelhouse by her attorneys for an independent medical examination on May 10, 2004. He specializes in evaluating physical disability and testified that the Employee had a limited range of motion in her cervical spine caused by cervical sprain with the C6-7 and C7-T1 disc protrusions, which were caused by repetitive lifting of heavy boxes. He stated this condition was permanent, and that she retained 8 percent disability to her whole person.
The Employer argues that its motion to compel an examination of the Employee should have been granted. The trial judge stated "the Defendant has already had the Plaintiff seen by another of their doctors and [the court] will not require her to go to yet another doctor." It is within the authority of the trial judge to require another examination of the Employee, see Tennessee Code Annotated section 50-6-204(d)(1), and the exercise of such authority is subject to review to determine if the trial court abused its discretion in denying the motion. See e.g., Long v. Tri-Con Indus., 996 S.W.2d 173, 178-79 (Tenn. 1999).
In Long, the Tennessee Supreme Court held that a physical examination of the employee, performed by a physician provided to the Employee on the panel required by statute, was sufficient where the physician was qualified to evaluate the patient. Id. at 179. The Court found that the panel physician in that case was qualified, even though he was an internist and not a specialist. Id. In the present case, the panel physician referred the Employee to an orthopedic surgeon, who testified that she retained no anatomical impairment. This Panel and the trial court had the opportunity to review the opinion testimony of both this specialist and Dr. Wheelhouse in determining the outcome of this case. While physical examinations requested pursuant to Tennessee Code Annotated section 50-6-204(d)(1) generally should be granted, we review the trial court's action on these requests under an abuse of discretion standard. Id. We find that the medical testimony provided in this case is sufficient to fulfill the statutory requirements in Tennessee Code Annotated section 50-6-204(d)(1). Accordingly, we hold that there is no abuse of discretion in the denial of the Employer's motion in this case.
The Employer also argues that the Employee is not entitled to an award of vocational disability pursuant to the provisions of Tennessee Code Annotated section 50-6-205(a), and pursuant to the policies behind the Workers' Compensation Law. Tennessee Code Annotated section 20-5-205(a) states:
(a) No compensation shall be allowed for the first seven (7) days of disability resulting from the injury, excluding the day of injury, except the benefits provided for in § 50-6-204, but if disability extends beyond that period, compensation shall commence with the eighth day after the injury. In the event, however, that the disability from the injury exists for a period as much as fourteen (14) days, then compensation shall be allowed beginning with the first day after the injury.
The Employer contends that since the Employee did not miss any work due to her injury, the injury did not last more than seven days and that the Employee is therefore not entitled to any type of disability benefits. We decline to accept this reasoning, since the Workers' Compensation Act clearly contemplates the opposite result.
First, the plain language of the quoted section does not require that an employee miss time from work in order to receive compensation under the Act. We will not read into the language of section 50-2-205(a) to find this meaning, since "[l]egislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language." Schering-Plough v. State Board of Equalization, 999 S.W.2d 773, 775 (Tenn. 1999). Second, the Workers' Compensation Act itself allows for disability benefits based only on a percentage of vocational disability, when an employee's condition is permanent, under the permanent partial disability classification. See Joe C. Loser, An Outline of the Workers' Compensation Law of Tennessee, 23-24 (12th ed. 2005)....
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