Venture Express v. Frazier

• Decision Date: 27 March 2019
• Docket Number: No. W2018-00344-SC-R3-WC,W2018-00344-SC-R3-WC
• Parties: VENTURE EXPRESS v. JERRY FRAZIER
• Court: Tennessee Supreme Court

VENTURE EXPRESS v. JERRY FRAZIER

No. W2018-00344-SC-R3-WC

SUPREME COURT OF TENNESSEE SPECIAL WORKERS' COMPENSATION APPEALS PANEL AT MEMPHIS

October 29, 2018 Session

Mailed January 2, 2019

March 27, 2019

Appeal from the Chancery Court for Madison County

No. 74856

James F. Butler, Chancellor

Jerry Frazier alleged that he sustained a compensable injury in the course of his work as a truck driver for Venture Express.The trial court held that Mr. Frazier's January 29, 2014 accident at work caused his neck, back and mental injuries, that the 1.5 times cap on permanent disability benefits did not apply, and that Mr. Frazier was permanently and totally disabled.Venture Express 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. § 50-6-225(e)(2014)(applicable to injuries occurring prior to July 1, 2014) Appeal as of Right; Judgment of the Chancery Court Affirmed

ROBERT E. LEE DAVIES, SR.J., delivered the opinion of the court, in which HOLLY KIRBY, J., and WILLIAM B. ACREE, SR.J., joined.

Geoffrey A. Lindley and Jennifer Vallor Ivy, Jackson, Tennessee, for the appellant, Venture Express.

David Hardee, Jackson, Tennessee, for the appellee, Jerry Frazier.

OPINION

Factual and Procedural Background

On October 12, 2016, Venture Express filed a complaint in the Chancery Court of Madison County, Tennessee, to determine workers' compensation benefits.Jerry Frazier filed an answer and counterclaim on November 7, 2016, along with a third-party complaint against MPTS, Inc., Cherokee Insurance Company, and the Second Injury Fund.The case was tried on September 26, 2017.The trial court took the case under advisement and on December 12, 2017, issued its written opinion.A final judgment was entered on January 29, 2018, from which Venture Express properly perfected its appeal.

Mr. Frazier, age 57 at the time of the trial, is a high school graduate whose job history consists primarily of driving trucks.This work involved heavy lifting, handling chains and binders, bending over, cranking dollies, climbing into trailers, and a lot of sitting and bouncing.He began working for Venture Express in June 2010.He had a physical examination and advised Venture Express of his 1998 back surgery related to a sports injury.Except for occasional flare-ups of arthritis, Mr. Frazier was fine after his 1998 back surgery.Starting in about 2011, his primary care physician, Dr. Jerry Wilson, prescribed pain medication for his back.

On January 29, 2014, Mr. Frazier was pulling into the parking lot of Venture Express in his truck when his wheel hit a pothole.The impact threw him into the side of his door where his head struck the top of the window, which was partially down.Mr. Frazier told the dispatcher about the incident and later informed his supervisor, Gary Rinks, about his injury.Mr. Frazier indicated he had immediate pain in his right shoulder, which ran down his right arm.He went to an urgent care facility where his wife worked, and the facility referred him to his primary care physician, Dr. Wilson.Dr. Wilson then referred Mr. Frazier to Dr. John Neblett.

Dr. Neblett is a board-certified neurosurgeon.Dr. Neblett first saw Mr. Frazier on February 27, 2014.He ordered an MRI which showed stenosis at C6-7 on the right side and a herniated disc at C5-6 on the right.After a conservative regimen of physical therapy failed to resolve Mr. Frazier's symptoms, Dr. Neblett recommended surgery, and on January 19, 2015, Mr. Frazier underwent a cervical discectomy with fusion at C5-6 and C6-7.Five months later, Mr. Frazier was still having numbness in his right thumb and index finger along with pain in the back of his neck.At one point, Mr. Frazier had tried to mow his yard and use a tiller but had to stop because of neck pain.Dr. Neblett prescribed cervical facet blocks for the pain which did not provide much relief.Dr.Neblett indicated Mr. Frazier had reached MMI on October 21, 2015, and opined that Mr. Frazier had suffered a permanent neck injury from striking his head in the cab.Dr. Neblett rated Mr. Frazier's impairment at fifteen percent to the body as a whole for his neck injury.¹Dr. Neblett declined to assign any permanent restrictions based upon a functional capacity evaluation.However, Dr. Neblett indicated Mr. Frazier's permanent neck injury would likely interfere with driving, yard work, mowing, or operating machinery that vibrates or causes him to use his arms or shoulders.

On March 10, 2016, Mr. Frazier was seen by Dr. Samuel Chung.Dr. Chung is a physiatrist, who performed an IME for Mr. Frazier's low back injury.Mr. Frazier reported to Dr. Chung that he continued to experience mild back pain which was aggravated by extended standing, stooping or turning to the right side.Dr. Chung was aware of Mr. Frazier's 1989 low back injury and his 1998 surgery on L4-5.Although he agreed Mr. Frazier had received good relief from the prior radiculothopy, Dr. Chung opined there was ongoing right lumbar radiculitis from hitting the pothole and being thrown around in his cab.Dr. Chung found that this was a permanent injury which resulted in a three percent whole body impairment.He indicated Mr. Frazier should avoid prolonged walking, standing, stooping, squatting, bending, climbing, and excessive flexion or extension of his back.Dr. Chung also agreed with Dr. Neblett that, if an impairment rating was done from the prior surgery in 1998, Mr. Frazier would have a permanent impairment rating from that surgery.

Subsequent to his neck surgery in January 2015, Mr. Frazier began to develop depression.As time went on, Mr. Frazier became more depressed.He explained that he stays in bed all day; does not get dressed; does not go out except to Walmart once a month to get medicine; and does not like to be around other people, which causes him to become nervous and break out in a cold sweat.He explained that now he feels useless and has suicidal thoughts on occasion.From a physical standpoint, Mr. Frazier indicated that his neck was still stiff and that he has right leg pain and cramps.He indicated he could stand for approximately twenty minutes before the onset of pain.On a typical day, Mr. Frazier watches television while he naps.He stays in the house and has never taken up his former hobbies such as fishing, hunting, and golf.He no longer works in the yard or does any household chores.For these reasons, Mr. Frazier testified he could not return to work as a driver for Venture Express, which required eleven hours of driving time a day.

Mr. Frazier admitted that he failed to renew his Department of Transportation physical, which is required to operate an eighteen-wheel truck, and that no physician has told him he could not drive; however, Mr. Frazier claimed that, because of his pain, he was unable to return to work and further that he was not going to attempt to do so because he was afraid he might injure someone.

Kim Frazier, Mr. Frazier's wife for seven years,² testified regarding the effects of his injury on her husband.On the day of the injury, she observed a gash on the top of her husband's head and confirmed he was complaining of right shoulder pain and right arm numbness.Mrs. Frazier then went on to describe the changes in her husband.Before the accident, Mr. Frazier was up at 5:00 a.m. every morning and would be on the go all day.He was always the provider and had worked all his adult life.She described her husband as a very outgoing person."He'd kid around, joke around, just always happy-go-lucky.Jerry was always the person to be around, funny, laughing."She and Mr. Frazier enjoyed going to the lake and having the family over for barbecuing.Mr. Frazier enjoyed woodworking and had many woodworking tools in the barn.He fished, hunted, and played golf.He also enjoyed cooking in cast iron skillets and pots, in which he excelled in making cobblers and biscuits.

Mrs. Frazier then described the changes that took place in her husband after his injury and surgery.Much of the time, Mr. Frazier sat in a dark room by himself.There were no more family get-togethers.Many days, he stayed in his pajamas and laid in bed.He cried a lot and was angry and quick-tempered.He no longer helped with housekeeping; he never cooked anymore or went to the barn to use his woodworking tools.Mrs. Frazier now does all of the yard work and has sold all of the chickens since her husband can no longer lift the fifty-pound bags of feed.Finally, she described her husband's anxiety if he finds himself in a group of people.

On April 21, 2017, Mr. Frazier saw Dr. Sidney Moragne for a mental IME.Dr. Moragne is a psychiatrist.The vast majority of his practice consists of treating adults, of which less than ten percent involves litigation.Dr. Moragne conducted an extensive interview and a review of Mr. Frazier's medical records.At that time, Mr. Frazier was already being treated for depression for not being able to work and enjoy his hobbies.Mr. Frazier reported having suicidal thoughts, worthlessness, difficulty sleeping, physical pain, and weight gain.He also described panic attacks that were triggered whenever he was in a crowd.Dr. Moragne diagnosed Mr. Frazier with major depressive disorder,recurrent, moderate to severe.Dr. Moragne also opined that the depression and anxiety were permanent conditions.Utilizing a combination of the brief psychiatric rating score, global assessment and functioning score, and the psychiatric impairment rating scale, Dr. Moragne found Mr. Frazier had an eighteen percent permanent impairment to the body as a whole, and he noted it would be a big hurdle for Mr. Frazier to return to work full time with these symptoms.Subsequent to the IME, Dr. Moragne began treating Mr. Frazier.Dr. Moragne increased Mr. Frazier's...