Thomas v. Aetna Life & Cas. Co.

Decision Date10 June 1991
Docket NumberNo. 1,1
Citation812 S.W.2d 278
PartiesArnold Rae THOMAS, Plaintiff-Appellee, v. AETNA LIFE & CASUALTY COMPANY and J.T. Baker Chemical Company, Defendant-Appellant. /. 812 S.W.2d 278
CourtTennessee Supreme Court

Edwin E. Wallis, Jr., J. Mark Patey, Jackson, for defendant-appellant.

Lisa June Cox, Jackson, for plaintiff-appellee.


REID, Chief Justice.

This workers' compensation case presents an appeal by the employer from the judgment of the trial court awarding the employee benefits for a fifty-two percent permanent partial disability to the body as a whole. The appellant attacks the credibility of the employee's medical evidence and contends the evidence preponderates against the trial court's award. The record shows that the evidence does not preponderate against the trial court's findings.

When injured on March 17, 1986, the appellee, Arnold Rae Thomas, was working for the appellant, J.T. Baker Chemical Company, as a "distribution technician" filling customer orders by collecting products from inventory and loading them onto trucks. The employee fell while taking a box weighing approximately twenty-five pounds from a bin. He experienced pain in his back and was transported by the employer's personnel to a hospital emergency room, where he was admitted to the hospital by Dr. Larsen, a general practitioner.

The employee was hospitalized for approximately one week following the injury in March and was readmitted for several days in April. During the three-month period following his injury, the employee received outpatient treatment at the Jackson Counseling Center for depression, and the following August and October he was hospitalized at the Jackson Psychiatric Hospital. Thomas was examined and/or treated as an outpatient and while hospitalized by numerous medical experts, six of whom testified.

Drs. Glenn Barnett, Lowell Stonecipher, and Harris Smith, who testified for the employer, found no permanent disability caused by the work-related injury. Drs. Robert Barnett, Joseph Battaile, and Lorne Semrau, who testified for the employee, found work-related disability. Dr. Robert Barnett found a ten to fifteen percent disability to the body as a whole, Dr. Battaile found a twenty-five to fifty percent mental disability, and Dr. Semrau found the appellee to be unemployable.

The trial court held that as the result of the injury the employee sustained a forty percent permanent partial disability to the body as a whole as the result of physical impairment and a twelve percent permanent partial disability to the body as a whole as the result of the aggravation of a pre-existing mental condition.

The appellant-employer acknowledges that the record contains competent evidence that the employee sustained an injury in the course and scope of his employment resulting in a permanent partial disability but contends that the testimony on which permanent disability is based is not credible and that, therefore, the preponderance of the evidence is against the award.

Dr. Glenn Barnett, a neurological surgeon, saw Thomas on March 18, 1986, at the request of the general practitioner who admitted him to Regional Hospital. Dr. Barnett testified that according to the patient's history he had been "perfectly well" prior to the accident on March 17, 1986, but when he bent down on that day to lift a forty pound box he experienced a "horrible, excruciating" pain in his lower back. The patient continued to experience severe pain, which was not relieved by frequent injections of Demerol. Dr. Barnett's impression was that the patient "might possibly have an acute disc rupture," and he recommended certain diagnostic tests, including a myleogram, the results of which, according to Dr. Barnett, were normal and did not indicate a thoracic fracture.

Thomas was referred by Dr. Glenn Barnett to Dr. Stonecipher, an orthopedic surgeon, who first saw him on April 3, 1986. Dr. Stonecipher's impression was that Thomas had "a compressed fracture of T6 or T7" and "possibly a herniated disc," and he prescribed bed rest and medication for a couple of weeks. When Dr. Stonecipher saw Thomas again on April 16, 1986, he was complaining of pain in his back, arms, and legs, numbness in his hand, loss of appetite, loss of weight, and inability to sleep. X-rays taken in Dr. Stonecipher's office showed no fracture.

Dr. Stonecipher again hospitalized Thomas from April 20 through April 25, 1986. Neither x-rays nor bone scan showed a fracture. "Nerve conduction tests" on the lower leg and an EMG showed "a little denervation in the gastroc-soleus." During this confinement the patient was seen by Dr. Brueggeman, a neurologist, primarily because the patient complained of severe headaches. Dr. Stonecipher testified that a CAT scan of Thomas' head "was all right." During this hospital confinement, Stonecipher consulted with Glenn Barnett. Barnett testified Thomas repeated his prior complaints of pain and numbness which, according to his report to Stonecipher, was most likely "tension headaches related to the chronic pain syndrome" and should be treated symptomatically.

Dr. Stonecipher saw Thomas again on May 8, 1986, and found "he wasn't any better." Stonecipher sent him again to Barnett, who testified the patient complained of constant pain below the scapula, intermittent back pain, and numbness and continual throbbing in his left leg and stated he had lost 15 pounds of weight, was unable to sleep, and was taking Tylenol, Wygesic, Feldine, and Valium. Barnett found him to be "tremulous, nervous and anxious." He testified the EMG study given on that date was normal.

The patient's final visit to Dr. Barnett was on June 9, 1986, when the complaints were "basically the same." Dr. Barnett testified with regard to the bulging disc that "[t]he presence of a, quote, diffusely bulging disc without definite disc herniation or spinal stenosis or lateral recess stenosis is not necessarily in of itself an abnormality of any consequence.... I did not feel that he had a herniated disc in March of 1986."

Dr. Stonecipher saw Thomas again on June 9, 1986, at which time the doctor "didn't find anything wrong with him" and discharged him to return to work. With reference to the disc, Stonecipher testified:

All a bulging disc means is that it is not flat on the vertebra. In other words, it may stick up a little bit higher than the vertebra. And somebody even who is twenty-five, thirty years old, that's normal. I mean, if they've got a huge bulging disc, which may be considered a herniated disc, that's a different story. But a diffusely bulging disc is of absolutely no significance to me.

With regard to disability, he testified:

[A]ccording to his history, he sustained an injury but I don't find anything wrong with him ... and I don't feel he has any permanent disability. This man hasn't got anything wrong with him. Doctor [Glenn] Barnett couldn't find anything, Dr. Brueggeman couldn't find anything, I couldn't find anything, could not substantiate it with my tests.

With regard to permanent disability, Dr. Glenn Barnett testified:

I don't believe that there is any permanent anatomical disability in this gentleman; I certainly felt on each time that I saw him that the complaints far outweighed the physical findings. And in view of the lack of objective abnormalities being present on the diagnostic studies, it was my impression that this gentleman did not have any significant problem with his back, although he certainly continued to complain quite loudly about this.

Dr. Robert Barnett, an orthopedic surgeon, saw Thomas for the purpose of evaluation on November 30, 1987, twenty months after the date of injury. Dr. Barnett reviewed the records of Thomas' treatment by Drs. Stonecipher and Glenn Barnett and of his hospitalization at Regional Hospital. From the patient he took a history of the accident, his symptoms, and treatment. Dr. Robert Barnett testified the patient's main complaints were numbness in his left hand, weakness in his hip, and pain in his upper and lower back, hip, and neck. Dr. Barnett's examination revealed good range of motion in neck and elevation of arms, less than complete range of motion in back as the result of pain, wedging of sixth and seventh dorsal vertebrae, scoliosis with left curvature of the spine, mild degenerative changes in neck and lower back, and "classical disc-like symptoms." Dr. Barnett stated that in his opinion the "lifting episode" described by the patient was the cause of his injuries. He testified Thomas should not lift any object weighing more than twenty-five pounds, should not do any repetitive lifting, binding, stooping, twisting, pushing or pulling and should not be required to sit or stand for long periods of time. He found permanent anatomical impairment of ten to fifteen percent to the body as a whole.

Dr. Semrau, a clinical psychologist, saw the employee on May 12, 1988. Thomas recounted his work history, his emotional difficulties, the pain and physical problems experienced, his failed marriages, the abusive use of alcohol and drugs, convictions of driving under the influence of alcohol, his hospitalization and treatment at the Jackson Psychiatric Hospital, and his "sexual dysfunction and impotence." Dr. Semrau testified that prior to the accident Thomas had a "history of being a very competent man but at the time of his evaluation he was 'emotionally dysfunctional.' " He concluded that prior to the accident Thomas "was functioning, albeit with difficulty" and the accidental injury "became a catalyst" whereby Thomas became "totally dysfunctional and completely dependent upon external issues." Dr. Semrau stated the "anxiety and depression may indeed have been pre-existing" but that "the on-the-job injury was the catalyst to create the severity of these symptoms that led him to the point of being dysfunctional."

Dr. Battaile, a psychiatrist, saw Thomas on October 26, 1988. He testified his...

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