Werner Co. v. Williams
| Decision Date | 18 April 2003 |
| Citation | 871 So.2d 845 |
| Parties | WERNER COMPANY v. Teresa WILLIAMS. |
| Court | Alabama Court of Civil Appeals |
Paula I. Cobia, Anniston, for appellant.
Robert W. Lee, Jr., and Wendy M. Thornton of Lee & Thornton, P.C., Birmingham; and Patrick P. Hughes, Anniston, for appellee.
Alabama Supreme Court 1021243.
Teresa Williams ("the worker") was employed at Werner Company ("the company"), a manufacturer of ladders, as a materials handler. She sued the company for workers' compensation benefits, alleging that she had been injured at work on November 30, 1998. After a trial, the trial court entered a judgment finding the worker 100% permanently and totally disabled and awarding the worker benefits and a lump-sum attorney fee. The company appeals.
The worker testified that her job required her to collect parts as they were needed for the persons assembling the ladders on the assembly line. According to the worker, on November 30, 1998, she was retrieving barrels filled with parts called "spreaders." The spreaders were in barrels and the barrels were stored on pallets. The worker testified that she was moving one of the barrels toward her when "the pallet broke and the spreaders went forward along with [her] shoulder."1 She said that she repeatedly reported the incident to her supervisor, Mark Bruce, but that he did not file a first report of injury. She said she continued to work despite her pain until December 28, 1998; on that date she told her new supervisor, Victor Rodriguez, of her injury, and he sent her to the emergency room at Stringfellow Hospital. The first report of injury form was completed on December 28, 1998.
After reporting to the emergency room, the worker was referred to Dr. Charlie Williams. Dr. Williams determined that the worker had strained her shoulder. He prescribed pain medications; he also limited her to two hours of work with her right arm, restricted lifting to no more than 10 pounds, and ordered that she not engage in work involving repetitive motion and that she do no work requiring her to raise her right arm above shoulder-level. At her follow-up appointment on December 30, the worker continued to complain of pain; Dr. Williams's office notes indicate that he diagnosed tendinitis and bursitis of the right shoulder. Dr. Williams injected the worker's shoulder with pain medication, continued her restrictions, and ordered one week of physical therapy.
The worker returned to Dr. Williams on January 6, 1999, with continued complaints of pain. Dr. Williams's office notes indicate that he was puzzled that the worker's pain, which she described as 10 on a scale of 1 to 10, had continued despite her being placed on light duty work and after the pain injection on December 30. He further restricted her work by requiring that she do no work with her right arm. He also referred her to Dr. Willie Stokes, an orthopedic surgeon, for further evaluation.
Dr. Stokes first saw the worker on January 7, 1999. He agreed with Dr. Williams's assessment of the worker's injury as tendinitis. According to Dr. Stokes's deposition testimony, an injury like the worker's usually develops as a result of some trauma or lifting activity, but the injury is usually resolved within four weeks by simply resting the injured joint. Dr. Stokes explained that tendinitis can induce subacromial bursitis, which is an inflammation of the bursa. He said that he treated the worker with another injection of pain medication in her shoulder, and he then released her to return to work with the restriction that she do no lifting of objects greater than 20 pounds. The worker returned to Dr. Stokes on January 14, 1999, still complaining of severe pain. Dr. Stokes then ordered an MRI of her shoulder, which, he said, was to rule out a possible tear in the rotator cuff. Bobbie Hammonds, the occupational nurse at the company, telephoned Dr. Stokes on January 19, 1999, before the MRI had been performed, to report that the worker, who had been assigned to a light-duty job, continued to complain of pain. Dr. Stokes indicated to Hammonds that the worker either had an underlying problem that had yet to be diagnosed or that she was malingering. He ordered that the worker not return to work until after her MRI was performed.
The worker underwent an MRI on February 6, 1999. According to the report from the radiologist and Dr. Stokes's deposition testimony, the MRI showed no abnormalities in any of the structures of the shoulder. Dr. Stokes concluded, based on his review of the MRI and on the worker's failure to heal from what he determined to be a minor case of tendinitis, that the worker should be discharged from treatment and released to work without restrictions.
The worker, however, continued to complain that she could not work because of her pain. She said in her deposition that she reported to Jerry Lowe, the manager of the company's human resources division, that she was still in pain and that she could not work despite the fact that Dr. Stokes had released her with no restrictions. She said that he told her to see her own physician. The worker's testimony is supported by a document in the record, written by Lowe, indicating that he told the worker that the company's workers' compensation insurance carrier had denied her request for work-related-injury leave and that she would need to get a release from her personal physician to return to work.
The worker then went to see Dr. C. Herbert McCrimmon, an orthopedic surgeon she had seen in the past. Dr. McCrimmon examined the worker on February 15, 1999, February 23, 1999, and March 3, 1999. Dr. McCrimmon's office notes indicate that he was informed that Dr. Stokes had seen the worker and that she was told to check out her medical records and to bring them to her next appointment with Dr. McCrimmon, which she apparently did. After reviewing her MRI, Dr. McCrimmon concluded that the worker may need arthroscopic surgery, so he referred her to his partner, Dr. Duane Tippets, for evaluation and possible surgery.
Dr. Tippets determined that the worker suffered from impingement and recommended an arthroscopic evaluation of her shoulder with possible subacromial decompression. The worker underwent surgery on March 23, 1999. According to Dr. Tippets, the surgery went well, but the worker continued to have pain. He had the worker attempt physical therapy to improve motion and strength.
The worker began physical therapy with Andrea Barnes at David Wilhoite and Associates on April 13, 1999, and reported for a total of six appointments. According to her physical therapy records, the worker communicated to Barnes on April 28, 1999, that she was pain-free and that she wished to discontinue therapy at that time. The records reflect that the worker stated that she could carry a laundry basket of wet clothes, reach overhead to hang clothes to dry, pick up and carry a one-gallon jug of milk, and reach overhead to the top shelf while grocery shopping. When questioned about these comments, the worker testified that she had reported being able to do all those things with her left arm. Barnes discharged the worker from therapy on April 28, 1999.
However, when the worker returned to Dr. Tippets's office for a follow-up appointment on May 11, 1999, the worker reported having increased motion but persistent pain. He also noted that she complained of feeling unstable. Dr. Tippets's office notes reflect that a review of photographs of the worker's surgery revealed a partial detachment of her anterior glenoidale labrum. He suggested in his office notes that the worker's reports of continued pain might require an open-shoulder reconstruction, but noted that he encouraged her to continue with therapy three times per week for another four weeks. Dr. Tippets's office notes do not indicate that the worker informed him that she had been discharged from therapy at her own request. One month later, on June 11, 1999, Dr. Tippets scheduled the worker for a shoulder reconstruction on June 30, 1999.
The operative record of the June 30, 1999, surgery indicates that the worker had "some definite anterior instability but without definite dislocation." In addition, the record states that "the anterior capsule was very attenuated and stretched out." According to the record, once all aspects of the surgery were completed, "this resulted in an exceedingly stable reconstruction." Again, after a few weeks, Dr. Tippets recommended physical therapy.
The worker began physical therapy at the Northeast Alabama Regional Medical Center. According to the records admitted at trial, the worker began therapy on July 19, 1999. She attended only two other appointments—on July 23 and August 5. She missed the other six scheduled appointments and was discharged on August 12, 1999, for failing to attend. The records reflect that she reported having a personal situation that prevented her from attending therapy. Dr. Tippets's office notes reflect that the worker had reported that she had lost her job and her insurance and that she was not getting paid. However, the worker was employed at the company until November 21, 2000, and her health insurance was in effect until November 30, 2000.
Dr. Tippets testified that he assigned the worker permanent restrictions in July 2000; specifically he prohibited lifting items weighing over five pounds and any overhead work with the right arm. When questioned about when the worker had reached maximum medical improvement ("MMI"), he noted that the injury was, at that time, not considered work-related. However, he said the worker, who had had periods of increased rotation and flexion and had also had setbacks, was, in his opinion, "as good as she was going to get" when he saw her on July 7, 2000. He noted that his impression was that she was not going to get better.
Dr. Tippets stated that, based on the worker's report of...
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