Wilhelm v. Krogers

• Decision Date: 17 August 2007
• Docket Number: No. E2006-00268-SC-WCM-WC.,E2006-00268-SC-WCM-WC.
• Citation: 235 S.W.3d 122
• Parties: Michael WILHELM v. KROGERS, d/b/a Peyton's Southeastern.
• Court: Tennessee Supreme Court

235 S.W.3d 122

Michael WILHELM v. KROGERS, d/b/a Peyton's Southeastern.

No. E2006-00268-SC-WCM-WC.

Supreme Court of Tennessee, at Knoxville.

May 2, 2007 Session.

August 17, 2007.

Lisa L. Conner, Chattanooga, Tennessee, for the appellant, Krogers, d/b/a Peyton's Southeastern.

H. Franklin Chancey, Cleveland, Tennessee, for the appellee, Michael Wilhelm.

OPINION

GARY R. WADE, J., delivered the opinion of the court, in which JANICE M. HOLDER and CORNELIA A. CLARK, JJ., and E. RILEY ANDERSON, Sp.J., joined.

In 2004, the plaintiff, Michael Wilhelm, filed a workers' compensation claim alleging an injury to his back and left hip. In response, the defendant, Krogers d/b/a Peyton's Southeastern, denied the claim, asserting that the injuries did not arise out of his employment. At the conclusion of the trial, the trial court awarded the plaintiff a 35% permanent partial disability to the body as a whole. The Special Workers' Compensation Appeals Panel affirmed the judgment. Because, however, the injuries do not qualify as work-related and an earlier workers' compensation settlement bars recovery, the judgment must be reversed and the case dismissed.

I. Factual and Procedural Background

Michael Wilhelm ("the Plaintiff"), now 38 years old, began working for Krogers, d/b/a/ Peyton's Southeastern ("the Defendant") in 1998 as a "case picker," a position that requires "stepping up and stepping down and lifting heavy cases" for loading into trucks for shipment. Several months later, he ruptured his right Achilles tendon while on the job. As a result of his injury, the Plaintiff developed symptoms of reflex sympathetic dystrophy ("RSD"), a condition that causes him to experience sharp pain and swelling in his lower right extremity. Since the time of the original injury, the Plaintiff has walked with a pronounced limp.

In a medical deposition related to the 1999 injury, Dr. J. Patterson Stone, the treating physician, testified that the Plaintiff's limp would likely cause left hip and lower back problems in the future. In another deposition related to the earlier injury, the Plaintiff acknowledged that one of his doctors had informed him that he would experience lower back and left hip problems because of his gait.

In 2003, the first claim was settled. The judgment approving the settlement specifically noted that treating physician had made a finding of an 11% permanent partial impairment to the lower extremity. The order further provided that "[i]n an effort to compromise their differences, all parties have agreed upon a lump sum payment . . . in full and final settlement of all claims of whatever kind or nature due to the Plaintiff under the [workers'] compensation law of Tennessee." The agreement directed that the Plaintiff would also further receive any and all reasonable and necessary medical treatment in the future which directly and naturally resulted from the 1999 injury.

After the settlement, the Plaintiff was assigned a light duty position in the "tote room," an area where plastic boxes, weighing approximately three pounds when empty, are filled with orders. The Plaintiff, who could perform his duties while seated, removed old labels from the boxes and then hung them on an overhead conveyor belt for distribution throughout the plant. He testified that his duties required him to walk approximately 250-300 yards each day.

After clocking in on May 1, 2004, the Plaintiff felt a "pop" while walking to his work station and then experienced pain in his lower back and left hip area. He was placed in a wheelchair, treated by the company nurse, and then transported to his vehicle. A few days later, the Plaintiff was examined by Dean Coulter, a physical therapist who performs contract work for the Defendant. The Plaintiff complained to the therapist that "this was the second time in three years that [this] has happened to me." Dr. Steven Williams, a chiropractor, and Drs. Rickey Hutcheson and Elmer Pinzon, orthopaedic physicians, also treated the Plaintiff.

In his workers' compensation claim for the impairment to his left hip and back, the Plaintiff admitted that his new injuries were a direct result of his 1999 ruptured Achilles. He argued, however, that because the more recent injury affected an entirely separate part of his body, he was entitled to additional permanent partial disability benefits. Because his Achilles rupture arose out of and occurred in the course and scope of his employment with the Defendant, Plaintiff argued that his pain was not idiopathic but the result of his deteriorating condition occurring directly and naturally as a consequence of the original compensable injury. In response, the Defendant contended that the 2004 condition developed as a direct result of the limp caused by the 1999 injury. Because the RSD and the antalgic gait (adopted to deal with pain) were apparent at the time of the prior settlement, the Defendant argued that no additional permanent partial disability should be awarded.

At trial, the Plaintiff introduced the deposition of Dr. Sean Brown, a physiatrist, a physician who combines the specialties of orthopaedics, rheumatology, and neurology into one practice area. After evaluating the Plaintiff in 2005, Dr. Brown determined that walking had caused the back and hip pain the Plaintiff experienced in 2004. He observed that the RSD caused the Plaintiff to "favor his hip, left hip" causing "more weight bearing on it," explaining that because RSD is a nerve problem often occurring after a traumatic injury, complications develop over time "with the signs showing up in the bone itself." He described RSD as a very painful condition with no cure. Dr. Brown believed that the hip and lower back condition was separate from the RSD. It was his opinion that the Plaintiff's awkward limp would eventually necessitate left hip replacement surgery. Dr. Brown assessed a 20% impairment to the left hip, a 6% impairment to the back, and a combined impairment of 14% to the body as a whole.

Dr. McKinley Lundy, who also testified by deposition, examined the Plaintiff in November of 2005 at the request of the Defendant. He also made a diagnosis of RSD, which he described as a "complex regional pain syndrome." He further determined that the Plaintiff had chronic trochanteric bursitis of the left hip, which was more likely than not caused by the abnormal gait. Dr. Lundy found no impairment to the Plaintiff's back, but found 7% impairment to the left lower extremity and 3% to the body as a whole. Dr. Lundy recalled that the Plaintiff entered his office on crutches. He later observed him walk unassisted in the parking area for approximately sixty feet.

In 2005, the Defendant discharged the Plaintiff when he left work before the end of his shift without contacting his supervisor. Until that occurrence, the Defendant had allowed the Plaintiff intermittent leave in order to transport his dependent father to medical appointments. Because the Plaintiff had occasionally abused the privilege, however, and had been previously warned against doing so, his employment was terminated after the 2005 incident.

The trial court concluded that the Plaintiff's back injury occurred as he walked to his work-station, that his increased pain was the result of his employment, and that the claim was, therefore, compensable. The court awarded a 35% vocational impairment to the body as a whole and held that the settlement for the previous injury was for a specific scheduled member, the right lower extremity, and that there was no injury to the left hip and the back at that time. While the trial court described the 2004 injury as "the natural and probable result of his prior compensable on the job injury to his opposite extremity in 1999," it also ruled that the Plaintiff was entitled to a second recovery because the settlement on the first claim did not include the anatomical areas covered in the latter claim.

Unlike the trial court, the Special Workers' Compensation Appeals Panel determined that the Plaintiff's injury was an idiopathic event; however, the Panel concluded that because walking as much as six hundred yards daily was a hazard incident to employment, the injury was compensable. The Panel further observed that because the 2004 injury had not manifested itself at the time of the settlement, the prior settlement did not bar the claim.

II. Scope of Review and Applicable Law

In workers' compensation cases, we review the trial court's findings of fact de novo accompanied by a presumption of correctness unless the evidence preponderates otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (Supp.2006); Lay v. Scott County Sheriff's Dep't, 109 S.W.3d 293, 296 (Tenn. 2003). "This standard of review requires us to examine, in depth, a trial court's factual findings and conclusions." Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn.1991) (citing Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 675 (Tenn.1991)). When there are no material facts in dispute, however, we review the trial court's ruling de novo with no presumption of correctness. Vinson v. United Parcel Serv., 92 S.W.3d 380, 384 (Tenn.2002). Our standard of review of questions of law is de novo with no presumption of correctness. Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 826 (Tenn.2003).

When the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, "considerable deference is afforded the trial court's findings of fact." Long v. Tri-Con Inds., Ltd., 996 S.W.2d 173, 177 (Tenn.1999). If medical testimony is presented by deposition, this Court may make an "independent assessment of the medical proof to determine where the preponderance of the evidence lies." Conner Bros. Excavating Co. v. Long, 98 S.W.3d 656, 660 (Tenn.2003). Any reasonable doubt as to whether the worker's injuries arose out of his employment must be construed in the worker's favor. Whirlpool Corp. v....